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[2026] NSWCA 132
respondent. Leave to appeal granted to the extent necessary; the respondent’s notice of motion dismissed with no order as to costs; appeal dismissed; appellant to pay the respondent’s costs of the appeal.
11 cited instruments linked from this judgment.
The Court of Appeal held that a police officer’s statutory duty to disclose relevant investigation material to the DPP can be a public duty for the tort of misfeasance in public office. The officer should have disclosed information about two other persons of interest, and that failure was an unauthorised omission. A claimant does not have to show that the public officer owed them a separate duty not to commit the abuse. But those findings did not establish the tort: the appellant also had to prove malice. The Court accepted that the officer could genuinely, though wrongly, have considered the information irrelevant. The appeal was dismissed. The Court also held that copying a party’s submissions does not, by itself, prove a failure to decide independently, and found that the primary judge’s reasons were adequate on the central issues.
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2,571 words · generated 05/10/2026
The case concerned the investigation and prosecution of Terry Tsakirios for an armed robbery at a Subway restaurant in Kings Park on 7 May 2019. The offender was masked and armed, and dropped a cable tie at the scene. Police collected forensic material and later obtained a mixed DNA profile from the cable tie. In October 2019, Detective Senior Constable Penelope Allan recorded that Tsakirios could not be excluded as a contributor to the DNA mixture, with the statistical result set out at [39]. Allan charged him on 27 November 2019 ([40]).
The investigation had also produced information about other possible persons of interest, particularly JN and ME. JN had been identified by family members from released images, and information was recorded about clothing, shoes and access to cable ties and imitation firearms. However, phone data placed JN’s phone away from the scene around the time of the robbery ([32]-[33]). ME had been identified by an informant, lived in the area, and was reportedly seen leaving his car around the time of the offence, though in different clothing ([34], [37]-[38]).
The prosecution brief did not disclose the investigations concerning the other persons of interest ([42]). Allan later redacted entries about them from records produced in response to a subpoena ([51]-[54]). The DPP discontinued the charge on 2 July 2021 after representations by the defence and the disclosure of information about the other persons of interest. The judgment expressly notes that the reasons for the DPP’s decision were not disclosed, so it cannot be said on this record that the disclosure was what caused the prosecution to end ([58]-[60]).
Tsakirios sued the State for malicious prosecution, false imprisonment and misfeasance in public office. The State accepted responsibility for Allan’s conduct. The appeal challenged only the rejection of the misfeasance claim ([20]-[22]). The Court of Appeal found that the primary judge had erred in two important respects: the s 15A disclosure duty was a public duty, and Allan had failed to disclose material relating to JN and ME. But the Court found no error in the primary judge’s conclusion that Allan had not acted maliciously. As malice remained essential to the tort, the appeal was dismissed ([25], [241]).
Kirk JA began with the limits of the tort. Deane J’s five-part formulation in Northern Territory v Mengel was a useful summary, not an exhaustive statement of every qualification ([75]-[78]). Kirk JA’s non-exhaustive account focused on a public officer, the purported exercise of public power, invalid or unauthorised conduct, malice and resulting loss or harm ([121]).
The concept of public power was central. It is governmental executive power capable of affecting another person’s rights or interests and involving decision-making in the public interest in a broad sense ([85]). The power must attach to the office in a meaningful way, but does not need to be exclusively or expressly assigned to that office ([87]-[90]). A police officer investigating a robbery and preparing prosecution material was performing statutory police functions, including functions to provide police services and prevent and detect crime ([125]-[127]).
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Tsakirios v State of New South Wales [2026] NSWCA 132
Hearing dates: 11 February 2026
Date of orders: 16 July 2026
Decision date: 16 July 2026
Before: Bell CJ at [1];
Leeming JA at [2];
Kirk JA at [20]
Decision: (1) To the extent necessary grant leave to appeal.
(2) The respondent’s notice of motion filed 6 February 2026 is dismissed, with no order as to costs.
(3) Appeal dismissed.
(4) Appellant to pay the respondent’s costs of the appeal.
Catchwords: TORTS — misfeasance in public office — elements — public power and meaning of public duty — not necessary to establish tort that there be duty to exercise power, although presence of such duty important in cases involving conduct by omission — not necessary to establish that public officer owed a duty not to commit particular abuse complained of to claimant individually or as member of class — duty in s 15A of Director of Public Prosecutions Act 1986 (NSW) applied to exercise of public power in investigating robbery — investigating officer failed to comply with public duty — officer did not act maliciously
CRIMINAL PROCEDURE — prosecution disclosure requirements — disclosures in indictment — statutory and common law obligations of legal practitioners acting as prosecutors — statutory framework intended to be capable of consideration and indirect enforcement by judiciary — framework pursues public interest in fair trial and efficient conduct of criminal proceedings
COURTS AND JUDGES — adequacy of reasons — complaint about inadequacy of reasons often inutile in appeal by way of rehearing where correctness of decision also challenged — reasons should in general consider and address core matters of law, fact or discretion in dispute — replication of party’s submissions unwise but does not necessarily render reasons inadequate — no distinct and sufficient criterion of inadequacy of reasons that justice has not been seen to have been done — primary judge brought own mind to bear on issues before him
Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 61, 62, 141-144, 146-148
Director of Public Prosecutions Act 1986 (NSW), s 15A
Director of Public Prosecutions Regulation 2020 (NSW), cl 5
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), rr 87, 88
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), r 29.5
Police Act 1990 (NSW), ss 3(1), 6(2)-(4), 11
Tsakirios
State of New South Wales
The Court also clarified how the tort applies to omissions. The tort is not a general remedy for a failure to act. But a failure to comply with a legal duty can amount to an unauthorised omission where the duty governs the exercise of public power and a court could have required the officer to comply with it ([95]-[102]). This distinction matters: mere oversight or a failure to exercise a discretionary power is not necessarily misfeasance. For an omission to fall within the tort, the failure must be unlawful in the relevant sense.
Section 15A applied to Allan as a police officer responsible for investigating an alleged offence. It required disclosure to the DPP of relevant information obtained during the investigation that might reasonably be expected to assist the prosecution or the accused ([128]). The Court considered that duty in the setting of the wider statutory regime. The Criminal Procedure Act provides for prosecution briefs and pre-trial disclosure, continuing obligations, and court powers concerning non-compliance ([132]-[133]). Prosecutors are also subject to professional conduct duties ([134]). The statutory scheme therefore was not merely a private or ethical arrangement between an investigating officer and the DPP.
The Court emphasised the public purposes of the disclosure regime: a fair trial, orderly and efficient proceedings, identification of the real issues and informed consideration of pleas ([140]-[145]). It held that s 15A imposed a public duty moderating the exercise of police power. The fact that the information had to be provided to the DPP did not make the duty merely one owed to that office ([131], [145]-[146]).
On the particular material, the statutory test was objective. It required an evaluative assessment, but did not turn on what the officer personally believed was relevant ([149]-[152]). The material about JN and ME was not necessarily compelling evidence that either had committed the robbery. The statutory threshold, however, was whether it might reasonably be expected to assist the accused. The Court concluded that defence counsel might have used the information to advance a reasonable-doubt argument, and that this possibility was not completely remote ([153]-[155]). It therefore found that the non-disclosure was an unauthorised omission ([159]).
That conclusion did not decide the appeal. The appellant also had to prove malice. The primary judge had accepted Allan’s account that she had discounted the other persons of interest and did not consider the information relevant. Kirk JA considered it plausible that she had reached that conclusion, even though it was wrong under s 15A. The evidence did not compel the inference that she withheld the information to obtain a conviction at all costs ([228]-[239]). The distinction is important: a breach of a public duty, even an objectively established one, did not by itself prove the state of mind required for this tort.
Before this decision, Deane J’s summary in Mengel was commonly used as a statement of the elements of misfeasance in public office. Kirk JA confirmed its continuing usefulness while stressing that it was expressly qualified and did not exhaust the tort’s limits ([75]-[78]). Leeming JA added that, in an uncertain area, courts may usefully focus first on the necessary core of the claim, meaning what must be present for the claim not to fail, rather than attempting to settle every sufficient formulation ([6]-[10]).
The decision clarified that the tort is directed to misuse of public power, not simply to any wrongful conduct by someone who happens to hold public office. The impugned conduct must be connected with the officer’s public functions and the exercise, or purported exercise, of public power ([78], [82]-[91]). It also clarified that the tort can apply to an omission, but only where a legal duty governs the relevant exercise of public power and the omission is unlawful in the sense explained at [102].
A significant change is the Court’s rejection of a requirement that the claimant prove the officer owed them, personally or as a member of a class, a duty not to commit the particular abuse. Kirk JA considered that requirement difficult to reconcile with the public nature of the power and the tort’s existing controls, especially the requirements of unlawfulness and malice ([115]-[120]). The decision departed from the approach in Tampion v Anderson and Cannon v Tahche on that point. It did not remove the requirement that a claimant establish all the other elements of the tort.
The judgment also explains why the statutory context matters when classifying duties. Section 15A was not treated as an isolated obligation owed only to the DPP. Its place in the criminal disclosure framework, its amenability to judicial consideration and the interests it served supported its characterisation as a public duty ([131]-[145]). This does not mean every statutory duty owed to a public body automatically qualifies. The Court’s reasoning tied its conclusion to the relationship between the disclosure obligation, police powers and the public purposes of criminal proceedings.
Finally, the judgment gives guidance on reasons and copied submissions. Adequacy depends on whether the reasons address the core disputed matters sufficiently to explain the decision, not whether every argument is discussed ([160]-[166]). Copying may raise a question about independent decision-making, but copying or lack of attribution alone is not legal error ([179]-[182]). The appellate question is whether the judge actually brought their own mind to bear.
At [86], Kirk JA said: “A public duty is one which moderates the exercise of public power, doing so in a way which also can be characterised broadly as serving the public interest.” In plain English, the duty must regulate how governmental power is used and have a public-facing purpose. The label attached to the duty is not the only consideration.
At [102], Kirk JA explained that an omission may be unlawful where “the failure to act was such that it would have been capable of being subject to an order by a court that the public officer exercise the power in a particular way to comply with the duty.” This draws a line between an enforceable failure to perform a required act and mere inaction where the officer retained a discretion.
At [115], the Court rejected a separate claimant-specific duty requirement. The claimant does not have to show that the public officer owed them a distinct duty not to abuse the power. The tort’s own requirements, especially unlawful conduct and malice, remain necessary limits.
At [145], Kirk JA concluded that s 15A “should be characterised as imposing a public duty which serves the public interest.” The basis was the wider statutory framework, including the role of disclosure in fair and efficient criminal proceedings, not simply that the DPP received the material.
At [154]-[155], the Court explained why the information about JN and ME crossed the disclosure threshold. It was not necessary to decide that either was likely to be the offender. It was enough that the defence might reasonably have used the material to argue that another person committed the robbery, and that this was not completely remote.
At [179], Kirk JA stated that copying a party’s submissions “does not by itself establish” that the judge failed to decide the case independently. The legal concern is not plagiarism. It is whether the reasons reflect the judge’s own assessment of the evidence, law and competing arguments.
At [239], the Court held that Allan’s explanation remained plausible and that the primary judge’s conclusion was not “glaringly improbable or contrary to compelling inferences.” In plain English, the appellate court accepted that she could have made a serious but non-malicious mistake about relevance.
The decision is most relevant where a public officer’s alleged misconduct occurs while performing an executive function and the claim concerns misuse of governmental power. It is particularly relevant to claims based on a failure to comply with a statutory duty that regulates how a public power is exercised. The claimant would still need to establish the required malice and resulting loss or harm; a breach of duty alone is not enough ([121]-[122]).
The disclosure analysis is relevant to investigations where police or other law enforcement officers hold material that could assist the prosecution or the accused. The judgment recognises that not every lead or person of interest must automatically be disclosed: material may be too remote, and assessment involves judgment ([149]-[151]). But the officer’s own belief that the material is irrelevant does not replace the statutory, objective test ([151]-[152]).
The case also bears on situations where confidential or source-related information is withheld. Kirk JA noted that the s 15A scheme itself contemplates how to handle material affected by privilege, immunity or publication restrictions, including informing the DPP of its existence and nature ([157]). A general confidentiality warning is not, by itself, a substitute for the statutory obligations. The Court said the Crime Stoppers warning in this case was too broad and liable to lead officers into error ([156]-[158]).
For judicial reasons, the precedent is relevant where a judgment substantially adopts a party’s written submissions. The degree of copying may prompt close scrutiny, but the decisive question is whether the judge independently decided the issues and adequately explained the core conclusions ([167]-[182]). The judgment also confirms that an appeal complaining only of reasons may be unhelpful where the appellate court can itself reconsider the correctness of the decision, as explained by Leeming JA at [3].
The material supplied contains this judgment and its citations to earlier authorities, but no later judgments applying or interpreting Tsakirios v State of New South Wales. Its treatment by later courts therefore cannot be established from the supplied source.
Within Tsakirios itself, the Court drew together Australian and overseas authority on misfeasance, including Mengel, Sanders, Three Rivers, Odhavji and Leerdam. It used those authorities to explain the public-power focus, the possibility of omissions, and the disputed question whether the officer must owe a duty to the claimant ([82]-[120]). It expressly declined to follow Tampion and Cannon to the extent they required a claimant-specific duty ([119]-[120]); Leeming JA separately explained why he did not regard Cannon as applicable to the statutory duty in New South Wales ([13]-[19]).
On disclosure, the Court considered Edwards and Kinghorn in describing the statutory and procedural setting. It relied on Edwards for the objective character of a related disclosure test and on Kinghorn for the ways disclosure obligations may be considered or indirectly enforced within criminal proceedings ([137]-[152]). These are the authorities discussed by this Court, not evidence of how later courts have treated Tsakirios.
The judgment deliberately left several questions unresolved. Kirk JA noted possible issues about whether de facto powers can support the tort, whether acts undertaken through ordinary capacities of legal persons count as exercises of public power, and when non-government actors exercising public functions may be liable. He did not decide them because they were not necessary to resolve this appeal ([92]-[94]).
Kirk JA also left open whether a claimant must have had standing to challenge the impugned conduct through judicial review, or to seek an order requiring performance of the duty. He said that possibility was not argued and should not be decided in the case ([118]). The decision therefore removes one proposed limitation, a duty owed specifically to the claimant, but does not settle every possible standing-based control.
The exact boundary between disclosable and non-disclosable investigative material remains fact-sensitive. The Court accepted that an investigation may generate many leads that can reasonably be excluded, and that the s 15A threshold requires an evaluative judgment ([149]-[153]). It held that the JN and ME material in this case met the test, but did not provide a comprehensive catalogue of material that must be disclosed in other investigations.
Finally, the decision does not define every form of malice that can satisfy the tort or determine how the test applies to different kinds of omission. It reaffirmed that a disclosure breach does not itself prove malice and that the officer’s state of mind remains a separate element. The outcome turned on the finding that Allan’s mistaken assessment could genuinely have been made without an improper purpose ([228]-[239]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have a qualified Australian lawyer check it.
Cases Cited: A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10
Amaca Pty Ltd v Werfel (2020) 138 SASR 295; [2020] SASCFC 125
Atanaskovic Hartnell Corporate Services Pty Ltd v Kelly (2024) 307 FCR 256; [2024] FCAFC 137
Australian Securities Commission v Schreuder (1994) 14 ACSR 614
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Beaudesert Shire Council v Smith (1966) 120 CLR 145; [1966] HCA 49
Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716
Bright v Westmoreland County 380 F 3d 729 (2004)
Calveley v Chief Constable of the Merseyside Police [1989] AC 1228
Campomar Sociedad Limited v Nike International Limited (2000) 202 CLR 45; [2000] HCA 12
Cannon v Tahche (2002) 5 VR 317; [2002] VSCA 84
Capilano Honey Ltd v Dowling (No 2) [2018] NSWCA 217
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190
Cojocaru v British Columbia Women’s Hospital and Health Centre [2013] 2 SCR 357; 2013 SCC 30
Crown Resorts v Zantran Pty Ltd (2020) 276 FCR 477; [2020] FCAFC 1
Director of Public Prosecutions (Cth) v Kinghorn (2020) 102 NSWLR 72; [2020] NSWCCA 48
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
Ea v Diaconu (2020) 102 NSWLR 351; [2020] NSWCA 127
Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28
Electricity Networks Corporation v Herridge Parties (2022) 276 CLR 271; [2022] HCA 37
Emanuele v Hedley (1998) 179 FCR 290
Farrington v Thomson & Bridgland [1959] VR 286
Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146; [2008] HCA 32
Fletcher Construction v Lines Macfarlane and Marshall Ltd (2002) 6 VR 1; [2002] VSCA 189
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Garrett v Attorney-General [1997] 2 NZLR 332
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187
Habib v Commonwealth (No 2) (2009) 175 FCR 350; [2009] FCA 228
Henly v The Mayor of Lyme (1828) 5 Bing 91; 130 ER 995
Hill v Van Erp (1997) 188 CLR 159; [1997] HCA 9
Housman v Camuglia (2021) 104 NSWLR 615; [2021] NSWCA 106
John v Commissioner of Taxation of the Commonwealth of Australia (1989) 166 CLR 417; [1989] HCA 5
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Jones v Bradley [2003] NSWCA 81
Jones v Swansea City Council [1990] 1 WLR 54; [1989] 3 All ER 162
Keith v Gal [2013] NSWCA 339
King v Australian Securities and Investments Commission [2018] QCA 352; (2018) 134 ACSR 105
Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553
Li v Attorney General for New South Wales (2019) 99 NSWLR 630; [2019] NSWCA 95
LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166; [2012] FCAFC 90
Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25; (2024) 98 ALJR 956
Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32
Marwan v Director of Public Prosecutions [2019] NSWCCA 161; 278 A Crim R 592
Mifsud v Campbell (1991) 21 NSWLR 725
Ming v Director of Public Prosecutions (DPP) (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29
Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 282 CLR 1; [2024] HCA 11
Moriarty v Nye (2024) 114 NSWLR 560; [2024] NSWCCA 116
NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
Neilson v City of Swan [2006] WASCA 94; (2006) 147 LGERA 136
New South Wales Police Force v Winter [2011] NSWCA 330; 10 DDCR 69
New South Wales v JR [2024] NSWCA 308
New South Wales v Spedding [2023] NSWCA 180
Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65
Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59
Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71
Odhavji Estate v Woodhouse [2003] 3 SCR 263
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Porter v The Queen (2024) 21 ACTLR 122; 2024 ACTCA
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; [1987] HCA 7
Pyrenees Shire Council v Day (1998) 192 CLR 330; [1998] HCA 3
R v Cosford [2014] QB 81; [2013] EWCA Crim 466
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; [1970] HCA 8
R v Whitaker [1914] 3 KB 1283
Richards v Kadian (2005) 64 NSWLR 204; [2005] NSWCA 328
Sanders v Snell (1998) 196 CLR 329
Queensland v Mr Stradford (a pseudonym) [2025] HCA 3; (2025) 99 ALJR 396
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Tampion v Anderson [1973] VR 715
The Trust Company Ltd v Commonwealth of Australia [2026] NSWCA 90
Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1
Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158
Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24
Werrin v The Commonwealth (1938) 59 CLR 150; [1938] HCA 3
Texts Cited: Mark Aronson, “Misfeasance in Public Office: A Very Peculiar Tort” (2011) 35 Melbourne University Law Review 1
Mark Aronson, “Misfeasance in Public Office: Some Unfinished Business” [2016] 132 LQR 427
Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7th ed, 2022)
Tina Cockburn and Mark Thomas, “Personal liability of public officers in the tort of misfeasance in public office – Part 2” (2001) 9 Torts Law Journal 245
Category: Principal judgment
Parties: Terry Tsakirios (Appellant)
State of NSW (Respondent)
Representation: Counsel:
T Game SC and R Pettit (Appellant)
N Newton and N Hirst (Respondent)
Solicitors:
Jackson John Defence Lawyers (Appellant)
Crown Solicitors Office (Respondent)
File Number(s): 2025/00150430
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
In May 2019 a masked and armed offender robbed a Subway fast food restaurant in Kings Park, Sydney (the Robbery). The appellant was charged with that offence by Detective Senior Constable Allan. The charge was withdrawn eight months later by the Director of Public Prosecutions (DPP), following representations made on the appellant’s behalf. The appellant then brought proceedings in the District Court against the respondent, the State of New South Wales (which accepted it was liable for the actions of DSC Allan), claiming damages for malicious prosecution, false imprisonment and misfeasance in public office. Key to the appellant’s case at first instance was the existence of information about other possible persons of interest which was not disclosed by DSC Allan to the DPP but which, it was argued, ought to have been disclosed pursuant to s 15A of the Director of Public Prosecutions Act 1986 (NSW) (DPP Act). The appellant said that it was this information, which he ultimately obtained through a contested subpoena process, which resulted in the DPP withdrawing the charge against him.
The primary judge found in favour of the State. In so doing the primary judgment adopted the State’s written submissions to a substantial degree, both in terms of structure and content. The appellant appealed from the primary judgment in relation only to the claim for misfeasance in public office, raising the following issues:
(1) whether the primary judge failed to give adequate reasons, or the fact-finding process otherwise miscarried, by failing to consider relevant and cogent evidence and substantial submissions of the appellant relating to particular evidence (Ground 1);
(2) whether the reasons of the primary judge were inadequate in that the nature and degree of unattributed copying and pasting of the respondent’s written submissions in the judgment was such as to suggest that the primary judge failed to give independent and impartial consideration to the evidence and the issues (Ground 2) and failed to ensure that justice was seen to have been done (Ground 3);
(3) in the alternative to Grounds 1-3, whether the finding that DSC Allan did not act maliciously was erroneous on its merits (Grounds 4-5 and 7-9);
(4) whether the primary judge erred in failing to find that DSC Allan breached her duty of disclosure under s 15A of the DPP Act (Ground 6); and
(5) whether the primary judge erred in finding that the duty to disclose under the DPP Act was not a public duty (Ground 10) and whether his Honour gave adequate reasons in that regard (Ground 11).
The Court held (Kirk JA, Bell CJ agreeing, Leeming JA agreeing with separate reasons on grounds 10 and 11 and the nature of the tort), dismissing the appeal:
The nature of the tort of misfeasance in public office
1. The formulation of the tort of misfeasance in public office set out by Deane J in Northern Territory of Australia v Mengel is not, and does not purport to be, an exhaustive statement of the tort: [8], [77].
Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65, discussed.
Mengel, discussed.
Pyrenees Shire Council v Day (1998) 192 CLR 330; [1998] HCA 3; Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64; Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553; Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71; Ea v Diaconu (2020) 102 NSWLR 351; [2020] NSWCA 127; New South Wales v Spedding [2023] NSWCA 180; New South Wales v JR [2024] NSWCA 308; Cannon v Tahche (2002) 5 VR 317; [2002] VSCA 84; Habib v Commonwealth (No 2) (2009) 175 FCR 350; [2009] FCA 228; Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59; Garrett v Attorney-General [1997] 2 NZLR 332; Odhavji Estate v Woodhouse [2003] 3 SCR 263, referred to.
3. Per Leeming JA: While Deane J in Mengel gave a positive formulation of five elements, there is merit in approaching the position by focussing on the necessary core of the tort – without which the plaintiff’s action would fail – rather than the elements which are sufficient to establish liability: [6]-[10].
Mengel, discussed.
Sanders; Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32, referred to.
Sanders, discussed
Mengel; Lockley; Leerdam; Ea; Farrington v Thomson & Bridgland [1959] VR 286; Emanuele v Hedley (1998) 179 FCR 290; Cannon; Nyoni; Jones v Swansea City Council [1990] 1 WLR 54; [1989] 3 All ER 162; Odhavji, referred to.
5. Per Leeming JA: It may be doubted that the passages in reasons for judgment which use the language of “public duty” were identifying an element of tortious liability. The question turns on the character of the conduct or omission of the public officer, rather than the legal character of the obligation imposed by statute. It is necessary that the malicious conduct be in the purported discharge of the duties owed by that person as a public officer: [18].
Mengel; Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1; Odhavji, discussed.
Leerdam; Garrett; Neilson v City of Swan [2006] WASCA 94; (2006) 147 LGERA 136, referred to.
Tampion v Anderson [1973] VR 715; Cannon, not followed.
Mengel; Leerdam, discussed.
Hill v Van Erp (1997) 188 CLR 159; [1997] HCA 9; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5; Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25; (2024) 98 ALJR 956; Neilson; Garrett; Three Rivers; Odhavji, referred to.
Grounds 10 and 11 – existence of a public duty in the relevant sense and primary judge’s reasons in that regard (per Kirk JA, Bell CJ and Leeming JA agreeing)
The primary judge was wrong to conclude that DSC Allan’s conduct in complying (or not) with the duty in s 15A of the DPP Act did not involve performance of a public duty in the sense relevant for the purposes of the tort of misfeasance in public office: [124]-[127].
The tasks undertaken by DSC Allan in investigating the Robbery involved, and only involved, an exercise as a police officer of statutory functions conferred by the Police Act 1990 (NSW), exercising power founded in that statute. Section 15A applied to DSC Allan in her capacity as a police officer when doing these tasks. That provision is part of a statutory framework imposing disclosure requirements on the prosecution which are capable of judicial consideration, and at least a degree of indirect enforcement. In this context s 15A should be characterised as imposing a public duty which serves the public interest. That duty moderates the exercise of public power by police officers exercising their functions under the Police Act, including those powers exercised by DSC Allan in the impugned conduct: [127]-[145].
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42; Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28; R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247; Marwan v Director of Public Prosecutions (NSW) [2019] NSWCCA 161; (2019) 278 A Crim R 592; Director of Public Prosecutions (Cth) v Kinghorn (2020) 102 NSWLR 72; [2020] NSWCCA 48, referred to.
New South Wales Police Force v Winter [2011] NSWCA 330; 10 DDCR 69; Housman v Camuglia (2021) 104 NSWLR 615; [2021] NSWCA 106; Capilano Honey Ltd v Dowling (No 2) [2018] NSWCA 217; The Trust Company Ltd v Commonwealth of Australia [2026] NSWCA 90, referred to.
Ground 6 – alleged failure to comply with public duty (per Kirk JA, Bell CJ and Leeming JA agreeing)
Edwards, Kinghorn, referred to.
Grounds 1-3 – adequacy of reasons and independent consideration of issues (per Kirk JA, Bell CJ and Leeming JA agreeing)
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666–667; [1987] HCA 7; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26; Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24; DL v The Queen (2018) 266 CLR 1; [2018] HCA 26; Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 282 CLR 1; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430; Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; Li v Attorney General for New South Wales (2019) 99 NSWLR 630; [2019] NSWCA 95; Ming v Director of Public Prosecutions (DPP) (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209; Fletcher Construction v Lines Macfarlane and Marshall Ltd (2002) 6 VR 1; [2002] VSCA 189, referred to.
Li, discussed.
Amaca Pty Ltd v Werfel (2020) 138 SASR 295; [2020] SASCFC 125; Atanaskovic Hartnell Corporate Services Pty Ltd v Kelly (2024) 307 FCR 256; [2024] FCAFC 137; Porter v The Queen (2024) 21 ACTLR 122; 2024 ACTCA; Cojocaru v British Columbia Women’s Hospital and Health Centre [2013] 2 SCR 357; 2013 SCC 30, referred to.
14. There is no distinct and sufficient criterion of inadequacy of reasons that justice has not been seen to have been done: [171]-[176], [185].
Li, applied.
Mifsud v Campbell (1991) 21 NSWLR 725; Sun Alliance Insurance Ltd v Massoud [1989] VR 8; Atanaskovic; Porter; Cojocaru, referred to.
15. While it is clear that the primary judge adopted the defendant’s written submissions in the primary judgment to a substantial degree, both in terms of structure and content, is clear that the primary judge did bring his own mind to bear, independently, in deciding the issues in dispute before him: [186]-[196].
Grounds 4-5 and 7-9 – findings on malic**e (per Kirk JA, Bell CJ and Leeming JA agreeing)
BELL CJ: I agree with Kirk JA.
LEEMING JA: I have had the considerable advantage of reading the reasons for judgment of Kirk JA in draft. I agree with him that the appeal should be dismissed with costs, because the appellant has failed in both his challenge to the adequacy of the reasons of the primary judge and his challenge to the factual findings concerning DSC Allan. I agree with the reasons of Kirk JA on those dispositive grounds (which are grounds 1-5 and 7-9). I also agree with Kirk JA, for the reasons he gives, for upholding ground 6 (that the primary judge erred in finding that DSC Allan had breached her duty under s 15A of the Director of Public Prosecutions Act 1986 (NSW)), and have nothing to add. What follows presupposes familiarity with those reasons.
I am indebted to Kirk JA’s extensive analysis on the law concerning misfeasance in public office. I agree with him that grounds 10 and 11 are made out. Ground 11 complained that no reasons were given for the conclusion that a breach of the duty to disclose under s 15A of the Director of Public Prosecutions Act did not amount to a breach of a “public duty” capable of engaging the tort. The reasons are non-existent, but nothing turns on this. Unlike the gravamen of grounds 1-3, which sought to impugn the curial process because of the nature of the reasons, ground 11 fits into the familiar case where a complaint about inadequacy of reasons is inutile. Such grounds are “usually not to the point”: Housman v Camuglia (2021) 104 NSWLR 615; [2021] NSWCA 106 at [33]. That is because if the issue is wrongly decided, this Court when hearing and determining an appeal by way of rehearing not limited to questions of law will intervene, even if the reasons are adequate; conversely, if the issue is rightly decided, this Court will not intervene even if the reasons are inadequate or non-existent: see New South Wales Police Force v Winter [2011] NSWCA 330; 10 DDCR 69 at [90]; Capilano Honey Ltd v Dowling (No 2) [2018] NSWCA 217 at [41] and The Trust Company Ltd v Commonwealth of Australia [2026] NSWCA 90 at [144]. The appellant rightly acknowledged that this ground was not pressed except insofar as it supported grounds 1-3. Thus, although this ground is established, it is immaterial given the failure of grounds 1-3.
Turning to ground 10, I agree with Kirk JA that the primary judge was wrong to accept the State’s submission that the duty to disclose under s 15A was not a “public duty” but instead “a duty owed to the DPP” as one of a number of reasons for rejecting the claim of misfeasance in public office. I prefer to give my own reasons for that conclusion. They are narrower than those given by Kirk JA, consistently with the relatively limited attention given by the appellant to the point (2 pages in the appellant’s written submissions in chief, 1 page in his submissions in reply, oral submissions occupying 7 pages of transcript). The respondent was even more economical (less than a page in written submissions, three pages of transcript in oral submissions).
The joint judgment in Northern Territory v Mengel (1995) 185 CLR 307 at 345; [1995] HCA 65 emphasised at the outset of its analysis of the tort that while it was “well-established”, the precise limits of the tort remained undefined:
It was recognized as recently as 1973 that the precise limits of the tort of misfeasance in public office were then undefined. In important respects, that is still true. However, the weight of authority here and in the United Kingdom is clearly to the effect that it is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power. (footnotes omitted)
Two aspects of the mode of reasoning warrant notice. The first is that the lack of definition of the precise limits of this tort continues, as was noted in Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64 at [42]. That is not necessarily a bad thing. It reflects the traditional minimal and incremental approach of the common law, being “the standard common law judicial technique of deciding no more than what needs to be decided”: Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32 at [76]. There is often merit in only deciding a question of law in a case where that issue is dispositive. One reason is that it is more likely that the court will receive full argument on a point on which the outcome of the litigation turns.
The second is that the joint reasons focussed on the necessary core of the tort – without which the plaintiff’s action would fail – rather than the elements which are sufficient to establish liability. In Northern Territory v Mengel, the issue arose in the context of overruling Beaudesert Shire Council v Smith (1966) 120 CLR 145; [1966] HCA 49 and it was appropriate to have regard to the extent of overlap with negligence and misfeasance in public office. But it is also an appropriate course in many cases which come before the courts.
The joint judgment did not identify the elements of the tort, but emphasised its imprecision and identified the circumstances in which a plaintiff would fail, while in contrast, Deane J gave (at 370) a positive formulation of five elements. I do not see any material conflict in this aspect of the reasons. Deane J was at pains to insist that his summary was just that – a “summary statement of the elements of the tort [which] inevitably fails to disclose some latent ambiguities and qualifications of which account must be taken in determining whether a particular element is present in the circumstances of a particular case”.
Perhaps the fact that Deane J positively formulated the elements of the tort is at least part of the reason why subsequent decisions of other Australian courts have tended to rely more on his Honour’s reasons for judgment than the joint reasons. To my mind, there is merit in approaching the position in the way formulated by the joint judgment. The experience of Australian courts is that very few actions for misfeasance in public office succeed, and that much of the reasoning including at the intermediate appellate level occurs in interlocutory appeals from application for strike out or summary dismissal. Hence practical considerations favour attention being directed at least in the first instance not so much to what is sufficient to establish the tort but instead what is essential without which the claim must fail.
That is sufficient in the present case to resolve this aspect of the appeal. The failure of the grounds of appeal challenging the findings that DSC Allan’s conduct was neither intentional nor reckless means that the appellant is within the area identified by the joint judgment in Mengel where he must fail.
Nonetheless, there is no sound reason to add to the essential matters, the absence of which entails the dismissal of a plaintiff’s action, a requirement that there be a duty owed by the police officer which is a “public duty” as opposed to a “duty owed to the DPP”. There are a number of reasons for rejecting that proposition. For one thing, the term “public duty” is poorly defined, especially when a duty is imposed by statute. Partly that is because of inexactness of language. We speak of a common law duty of care, but of course that is not a Hohfeldian duty, in the sense that its breach does not without more give rise to a correlative right. When, as in the present case, the duty is imposed by statute, then there are a variety of possibilities. Some statutes impose duties, breach of which sounds in damages. Others impose duties which may be enforced by public law remedies, notably orders in the nature of mandamus. And some impose so-called “duties of imperfect obligation”, which may not be enforced at all. Dixon J treated the tortious liability of the Commonwealth in that manner (see Werrin v The Commonwealth (1938) 59 CLR 150 at 168; [1938] HCA 3).
That said, the law of tort is capable of engaging with duties of imperfect obligation. Two examples suffice to illustrate the point. The tortious liability of a solicitor retained by a testator to draft a will depends upon the contractual duty of imperfect obligation owed, in the sense that the law of torts operates in favour of third parties who suffer loss only after the testator’s death by vindicating the fulfilment of the contractual obligation: Hill v Van Erp (1997) 188 CLR 159 at 233; [1997] HCA 9 and Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25; 98 ALJR 956 at [69]. An occasion of qualified privilege at common law may arise where there is a “duty” to make a statement, and it is settled that those circumstances are not confined to legal duties but extend to “moral and social duties of imperfect obligation”: see Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at [137] and [145].
I have paused on duties of imperfect obligation because they bear some semblance to s 15A, and also because of the mode of reasoning in Cannon v Tahche (2002) 5 VR 317; [2002] VSCA 84. The joint judgment of the Victorian Court of Appeal, after reviewing the development and nature of the duty to disclose including Tampion v Anderson [1973] VR 715, said at [59]:
The historical development of the prosecutor’s “duty of disclosure”, its discretionary nature and the variability of the circumstances which will inform its content all confirm that it is a duty which is owed to the courts and not to the accused or the public generally. Further, it seems to us that the obligation is one which lacks the characteristics of a duty, breach of which is enforceable at law at the instance of the accused, whether by way of “malicious prosecution” or “misfeasance in a public office”.
Two things may be noted. First, their Honours stated that the duty “does not spring from any statutorily given power”, but instead “from practices established by judges over the years which have been designed to ensure that an accused person receives a fair trial”: at [56]. That description is inapt to describe the duty applicable in New South Wales in 2026.
As Mr Game SC emphasised in oral submissions, it is clear that s 15A does not stand alone, but is an aspect of the rules and principles and ethical obligations governing criminal prosecutions, which extend to Rules 87 and 88 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) and “Guideline 18” issued by the Director to prosecutors pursuant to s 14 of the Director of Public Prosecutions Act (these are summarised in Marwan v Director of Public Prosecutions [2019] NSWCCA 161; 278 A Crim R 592 at [31]-[39] and need not be reproduced here). At least in ordinary cases, the entitlement conferred by the regime of which s 15A is part is an entitlement to a fair trial, primarily enforceable by a temporary or permanent stay of prosecution. Indeed, as was observed in Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28 at [52] (a decision mentioned by the Court during argument), s 15A was stated at the time as intended to introduce “a general duty of disclosure upon police officers involved in the investigation of an offence”. That tends to favour the conclusion that s 15A does not fall outside of the public duties on which the tort rests.
Secondly, contrary to the proposition in Cannon at [59], merely because the duty is said to be “owed to the courts” is not, in my respectful opinion, a sound basis for excluding the operation of the tort of misfeasance in office. As I have sought to explain, there is no comparable inhibition in other areas of the law of torts where a duty is one of imperfect obligation. My view accords with what was said by Macfarlan JA of this aspect of Cannon in Leerdam v Noori [2009] NSWCA 90; 255 ALR 553 at [116], writing in this respect with the agreement of Spigelman CJ and Allsop P.
For both those reasons, I would not regard what was said in Cannon as applicable to the duty in s 15A and cognate legislation.
Finally, it may be doubted that the passages in reasons for judgment which use the language of “public duty” were identifying an element of tortious liability. Naturally, care must be taken to avoid reading reasons for judgment as if they were statutes. The element articulated by Deane J was that an act giving rise to the tort was “in the purported discharge of his or her public duties”. An entirely private act – say, an ICAC investigator or a police detective breaking into someone’s house and photographing something embarrassing with a view to causing harm, unconnected to any of the public duties owed by the public officer – would be outside the scope of the tort. Another way of putting this is that the happenstance that the malevolent wrongdoing defendant is a public officer does not necessarily elevate what otherwise would be his or her private conduct into something capable of satisfying or engaging the tort. Instead, it is necessary that the malicious conduct be in the purported discharge of the duties owed by that person as a public officer. There may of course be difficult borderline cases, but the question turns on the character of the conduct or omission of the public officer, rather than the legal character of the obligation imposed by statute. Ultimately, I think there is much to be said that the issue is predominantly one of language, rather than law, and that it is a misuse of language to pass from the public duties of (say) a police officer to the nature of the duty imposed upon a police officer by statute. “Duty” bears quite different meanings in those contexts.
Although on the view I take, it is unnecessary to go so far in order to determine this ground of appeal, I also indicate my agreement with what Kirk JA has said at [115]-[120] to the effect that there is no requirement that the duty be one owed to the plaintiff either individually or as a member of the class
KIRK JA: On 7 May 2019 a masked and armed offender robbed a Subway fast food restaurant in Kings Park, Sydney, taking some $1,100 in cash from the till. The appellant, Terry Tsakirios, was charged with that offence by Detective Senior Constable Penelope Allan of the New South Wales Police Force on 27 November 2019. The charge was withdrawn by the Director of Public Prosecutions (DPP) on 2 July 2021, following representations made on the appellant’s behalf. The appellant subsequently brought proceedings in the District Court against the respondent, the State of New South Wales (which accepted it was liable for the actions of DSC Allan), claiming damages for malicious prosecution, false imprisonment and misfeasance in public office.
Key to the appellant’s case at first instance was the existence of information about other possible persons of interest which was not disclosed by DSC Allan to the DPP but which, it was argued, ought to have been disclosed pursuant to s 15A of the Director of Public Prosecutions Act 1986 (NSW) (DPP Act). The appellant said that it was this information, ultimately obtained by the appellant through a contested subpoena process, which resulted in the DPP withdrawing the charge against him.
The primary judge, Weber DCJ, found in favour of the State: Tsakirios v State of New South Wales [2025] NSWDC 90 (J). The appellant has appealed from the primary judgment in relation only to the claim for misfeasance in public office; his Honour’s conclusions with respect to the other two torts are not challenged. The primary judge’s rejection of the misfeasance claim (along with his rejection of the other two torts) was in no small part due to his Honour’s acceptance of DSC Allan’s evidence, which led to a conclusion that the element of malice was not established. His Honour also relevantly found that the duty of disclosure created by s 15A did not constitute a “public duty” and did not therefore satisfy one of the elements of the tort of misfeasance in public office. He also found that DSC Allan had not failed to comply with s 15A in any event.
The State had suggested in its written submissions that leave to appeal was required on the basis that there was not a realistic prospect of the appellant obtaining in excess of $100,000 in damages if the appeal was upheld. On this basis it filed a notice of motion on 6 February 2026 seeking that the appeal be dismissed as incompetent. However, the State did not maintain that position at the hearing. It is clear, in any event, that if leave was required it should be granted given the issues of principle raised by the appellant. In the circumstances leave should be granted to the extent necessary, and the State’s motion should be dismissed with no order as to costs.
The issues raised on appeal are as follows:
whether the primary judge failed to give adequate reasons, or the fact-finding process otherwise miscarried, by failing to consider relevant and cogent evidence and substantial submissions of the appellant relating to particular evidence (Ground 1);
whether the reasons of the primary judge were inadequate in that the nature and degree of unattributed copying and pasting of the respondent’s written submissions in the judgment was such as to suggest that the primary judge failed to give independent and impartial consideration to the evidence and the issues (Ground 2) and failed to ensure that justice was seen to have been done (Ground 3);
in the alternative to Grounds 1-3, whether the finding that DSC Allan did not act maliciously was erroneous on its merits (Grounds 4-5 and 7-9);
whether the primary judge erred in failing to find that DSC Allan breached her duty of disclosure under s 15A of the DPP Act (Ground 6); and
whether the primary judge erred in finding that the duty to disclose under the DPP Act was not a public duty (Ground 10) and whether his Honour gave adequate reasons in that regard (Ground 11).
It is convenient to address Ground 10 (and related Ground 11), then Ground 6, prior to the other grounds, as they raise significant points of principle with respect to the tort. I would uphold those grounds. However, as to Ground 11, that the primary judge gave inadequate reasons on an issue of law reargued in full in this appeal does not advance matters. As to Grounds 6 and 10, success on those grounds was necessary but not sufficient to uphold the appeal. I would not uphold the other grounds, which relate in various ways to the malice element of the tort. The appeal must therefore be dismissed.
This judgment is structured as follows:
background (at [27]-[66]);
the arguments made with respect to Grounds 6, 10 and 11 (at [67]-[74]);
relevant aspects of the tort of misfeasance in public office (at [75]-[122]);
whether s 15A of the DPP Act is a public duty in the relevant sense (Ground 10, at [123]-[146]);
whether DSC Allan failed to comply with s 15A (Ground 6, at [147]-[159]);
principles relating to provision of judicial reasons (at [160]-[183]);
adequacy of the primary judge’s reasons and whether his Honour gave independent consideration to the issues raised (Grounds 1-3, at [184]-[224]); and
whether the primary judge erred in his findings on malice (Grounds 4-5 and 7-9, at [225]-[240]).
A masked and armed offender robbed a Subway outlet in Kings Park, Sydney, just after 6:15pm on 7 May 2019 (the Robbery). In the course of doing so the offender dropped a cable tie. The offender left on foot. The Robbery was captured on CCTV.
Police arrived soon thereafter. They took DNA swabs, including of the cable tie. DSC Allan arrived later that night, spoke to officers and witnesses in attendance, and collected evidentiary material. She became the officer in charge of the investigation.
In the days immediately after the robbery DSC Allan circulated an intelligence alert on a statewide police messaging system to the surrounding police area commands. She also publicised the case by media release which was posted to a public police Facebook site and which included three photos of the offender taken from the CCTV footage. Responses to the intelligence alert and media release contained information which led DSC Allan to note five people as possible persons of interest, being the appellant, JN, ME, AT and TH (I shall refer to the latter four as the Other Persons). In this matter the appellant focused on the potential relevance of JN and ME in particular.
On 8 May 2019 the appellant was arrested in relation to a robbery of a Red Rooster outlet which had occurred in July 2018. The appellant ultimately pleaded guilty to that offence. The Red Rooster robbery was recorded on CCTV, which was watched by DSC Allan. She considered that person to have had similarities to the offender who undertook the Robbery, including in relation to the build, dress, movements and the words spoken. There was evidence that the appellant lived not far from the Subway store the subject of the Robbery. Further investigation showed that 12 minutes after the Robbery the appellant’s phone “bounced” off a mobile phone tower in Eastern Creek, which was 15 kilometres away from the Subway. DSC Allan drove that course and established that that was approximately a ten-minute drive away on the M7 motorway.
In relation to JN, on 13 May 2019 DSC Allan was informed by another police officer that some family members of JN had identified him as the offender, including by stating that JN owned an identical hooded jumper to that worn by the offender. DSC Allan spoke to the main source of this information who indicated that they thought JN wore shoes like those the offender wore in the Robbery, that he had access to cable ties through his employment (which was said to be at Blacktown), and that he was known to spray paint toy firearms to look real. DSC Allan looked at shoes shown on a Facebook profile of JN and recorded in the Case Report that “it is unclear if it is the same shoes or a similar white shoe”. She gave evidence that she was not “able to see the clothing that was described as being similar”. She also gave evidence that it appeared JN had been living near Stanmore (in the Inner West of Sydney) as there had been some interactions with police recording him there.
Later in May DSC Allan recorded that mobile phone data indicated JN’s phone had been in the CBD around 4pm on the day of the Robbery, then there were mobile tower pings at Petersham at 5:25pm and at Newtown at 6:02pm (I interpolate that in practical terms that ruled JN out as being the offender if he was carrying his phone at the time). Furthermore, she recorded that an Opal public transport card belonging to JN had not been used at or around the time in question, and that he did not have a drivers licence.
In relation to ME, on 15 May 2019 Crime Stoppers was informed that he was the man in the footage by an informant. At some stage DSC Allan spoke to the informant. Some information is recorded in the Case Report about ME, seemingly obtained from the informant. It is stated that he was a “tall, skinny” man (in a police intelligence report the Robbery offender had been described as “tall, muscular build”). It said ME was destitute and homeless and living with his “wild dog” in a car parked in the same suburb as the Subway store. An officer canvassed that area for CCTV material and had seen some footage which showed ME leaving the area of his car at the time of the offence but wearing different clothing. That footage was not saved and subsequently was overwritten.
It seems that on or about 18 May 2019 the results of a DNA test on the cable tie found at the scene came back, with the result recording a mixed DNA profile. DSC Allan recorded in the Case Report that, based on this result, it was “highly unlikely” that TH and AT were involved in the matter as their DNA profiles were already on the database. That reasoning was not attacked in this Court. The appellant’s DNA profile was not on the database at that stage. Nor, it seems, was that of JN or ME.
On 18 September 2019 DSC Allan suspended the investigation into the Robbery on the basis that there were no persons of interest “positively identified”. In the Case Report she relevantly recorded the following:
In relation to JN:
On the 18th September 2019 enquiries were made in relation to the whereabouts of [JN]. He has recently moved to Western Australia. Given that and the fact that his mobile phone was moving around the time of the offence in the city and the fact there is no direct evidence linking [JN] to the offence it is unlikely that [JN] was involved in the robbery.
Terry Tsakirios is currently in custody in Bathurst [for the Red Rooster robbery]. There is no direct evidence linking Tsakirios to this incident. It is expected that a forensic procedure will be conducted on Tsakirios as an untested offender as his DNA has never been captured …
If Tsakirios is a match to the DNA profile obtained at the scene of the offence then the case will be re-opened.
Some days after I attended the business and spoke to a male at the business to collect the CCTV footage which had been requested previously. He advised that they tried to copy the footage however it had been overwritten and was not available. Whilst leaving the location I saw [ME] in the carpark of a nearby building. [ME] was talking and rambling to himself and his dog. His movements were erratic when he walked and he appeared to have been suffering from some sort of mental health or was affected by prohibited drugs. His clothing was dishevelled. [ME’s] features including his hair was lighter than the colour of the person on the CCTV at the Subway robbery. In the information I received in relation to [ME] it had been disclosed that he rarely went anywhere without his dog. [ME] was ruled out as a person of interest due to the way he moved, his physical appearance and the way he moved and acted.
This explanation is consistent with what she had recorded in the Case Report.
On 15 October 2019 DSC Allan was notified of further DNA analysis results from the cable tie, which indicated the presence of a mixed DNA profile with the appellant identified as a contributor to that mixture. She recorded the following in the Case Report with respect to the result:
Terry TSAKIRIOS … cannot be excluded as the major contributor to this mixture. Assuming there are three contributors, it is greater than 100 billion times more likely to obtain this mixed profile if it originates from Terry TSAKIRIOS and two unknown, unrelated individuals, rather than if it originates from three unknown, unrelated individuals in the Australian population. The DNA from the minor contributors is not suitable for comparison due to the low level and complexity.
DSC Allan reopened the case. She recorded in the Case Report that “[a]s a result of the forensic examination at the scene the [appellant] was identified by DNA”. On 27 November 2019 the appellant was charged with the offence of robbery while armed with a dangerous weapon in relation to the Robbery.
The evidence – especially the contemporaneous Case Report – indicates that key factors in DSC Allan’s reasons for charging the appellant were as follows (see similarly J[18], [20] and [54]):
She considered that the appellant – as shown in the Red Rooster footage – had similarities to the offender who undertook the Robbery, including with respect to build, dress, movements and words spoken.
The appellant lived not far from the Subway store the subject of the Robbery.
His phone “bounced” off a mobile phone tower in Eastern Creek 12 minutes after the Robbery, which was about a 10 minute drive away.
In her view other possible persons of interest had been excluded.
DNA evidence linked the appellant to the cable tie dropped at the scene by the offender.
By 29 January 2020 DSC Allan had prepared the brief of evidence. She also signed a “Disclosure Certificate” by which she acknowledged her duty of disclosure. The Certificate acknowledged the duty to disclose to the DPP “all relevant material”, which was said to be “all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person”. The brief did not disclose the existence of the Other Persons or the investigations into those persons.
In April 2020 the DPP took carriage of the prosecution. A Solicitor Advocate from the DPP certified that “[t]he evidence available is capable of establishing each element of the offences that are to be subject of the proceedings against the accused person”.
In May 2020 DSC Allan received an expert certificate regarding the DNA evidence from Ms Campbell of the NSW Health Pathology Forensic and Analytical Science Service. It was consistent with the earlier report received in October 2019. An appendix to the expert certificate was an “Overview” document giving a seven page general explanation of DNA evidence. That appendix included the following under the heading “Transfer and persistence of DNA”:
DNA can also be transferred indirectly via an intermediary. This process is often referred to as 'secondary transfer'. In this manner, it is possible for a person's DNA to be deposited on to an object, surface or person that they have not had any direct contact with. Studies conducted by FASS scientists have demonstrated that DNA can be transferred to items of clothing through the use of shared washing machines and there are numerous publications in the scientific literature demonstrating transfer of DNA during social contact which is not related to any criminal activity. … If how or when the DNA was transferred is at issue, it is advisable to contact the laboratory well in advance of any court proceedings to determine whether an opinion is able to be provided. Generally, when individuals have been in direct or indirect contact with each other in social or household environments, the possibility that secondary transfer of DNA occurred will be considered reasonable and therefore there may be little evidentiary value to the recovery of DNA from a specified individual.
I note that the possibility of indirect, secondary transfer of DNA is constant and generic, as is implicit in this explanation. That generic possibility does not mean DNA evidence is of no probative utility. Whether or not it is a real possibility depends on the facts of the particular case. For example if DNA was found on the clothes of one person which had been in a shared washing machine which an accused had used, or if the accused had recently shaken hands with another possible suspect, then there might be a realistic possibility of secondary transfer. If there is no conceivable explanation of how an accused’s DNA might have been transferred to something found at the scene of a crime, then that would not appear to involve a realistic possibility of secondary transfer; it would be a mere theoretical, speculative possibility. The significance of DNA evidence must always, of course, be understood in the context of the facts of any particular case, and recalling that the accused bears no onus.
In June 2020 the DPP was served with an independent expert report in relation to the DNA evidence prepared by Ms Helen Roebuck. This report was not provided to DSC Allan. Ms Roebuck found that “there is extremely strong scientific support for the proposition that Terry TSAKIRIOS has contributed to the mixed DNA profile obtained from the swab of the cable tie”. She also identified that there were at least two additional contributors to the DNA profile and whilst it was not possible to determine “a clear major contributor”, the appellant’s DNA accounted for 69% of the DNA in the DNA profile. Ms Roebuck concluded that it was not possible to determine whether the DNA matching the appellant had been deposited through direct contact with the cable tie or via indirect transfer, nor was it possible to determine when the DNA was deposited.
Ms Roebuck’s report was not inconsistent with the conclusions in the prosecution expert certificate. The fact that she indicated that indirect transfer could not be excluded reflects the generic point already made. Her conclusion said nothing of significance about this particular case. Her report did not suggest that there was any particular reason to think that the accused’s DNA had been transferred in some indirect way to the cable tie found at the scene. Indeed, counsel for the appellant ended up accepting in this Court that secondary transfer was, on the evidence, a possibility that was “entirely theoretical”.
In July 2020 the DPP served a tendency notice indicating it was going to rely on the claimed similarities between the Robbery and the Red Rooster robbery (to which the appellant had pleaded guilty by that stage). In March 2021 the DPP also served a notice raising coincidence evidence relating to that robbery. At some stage it appears the DPP changed its mind on making use of that evidence.
In August 2020 the appellant pleaded not guilty to the Charge.
On 20 April 2021 DSC Allan swore a disclosure affidavit to the effect that, with some limited identified exceptions, she had disclosed all relevant material in accordance with s 15A of the DPP Act. A copy of s 15A was annexed to her affidavit. Again, she did not refer to the existence of the Other Persons or her investigations into those persons.
On 11 May 2021 the appellant served a subpoena on the Commissioner of Police which sought production of, amongst other things, COPS records relating to the Robbery (First Subpoena). On 19 May 2021 DSC Allan raised a request to object in part to the First Subpoena. Amongst other things, DSC Allan relevantly stated in relation to the disclosure of the COPS records that a “copy of the case can be provided also with redacted personal details and redacted details of the investigation not relevant to TSAKIRIOS”. The objections were marked as being agreed to by two more senior police officers, and as having been forwarded to the Subpoena unit for review and compliance. DSC Allan then produced a redacted version of the relevant records. Robert Young, a solicitor at the law firm Makinson D’Apice, was appointed to represent the Commissioner in relation to the objection. DSC Allan provided the redacted material to the solicitor. DSC Allan redacted all the entries in the Case Report relating to the Other Persons.
In her evidence in chief below her explanation for taking that step was that “that they weren’t involved and to protect their personal details and relating to someone who wasn’t involved in the matter”. DSC Allan had instructed Mr Young that the redacted material “concerned intelligence reports and repetitions” which were “unrelated to the subpoena and/or the matter”.
The material, with redactions, was produced on 4 June 2021. The appellant pressed for complete disclosure and, on 16 June 2021, issued a Second Subpoena compelling production of that material.
On 21 June 2021 DSC Allan raised a request objecting to the Second Subpoena. Amongst other things, DSC Allan said, in relation to the COPS records, “these were provided with the original subpoena as follows: […] redacted personal details and redacted details of the investigation not relevant to TSAKIRIOS of the case”. The objections were again supported by two more senior police officers.
A hearing relating to the subpoena commenced in the District Court on 29 June 2021. In the course of the hearing the Commissioner agreed to produce the material with most redactions removed but with names still redacted. The next day the Court ordered production with the redacted names revealed.
On 29 June 2021 the appellant’s counsel emailed the DPP Solicitor Advocate describing the content of the partially unredacted material. The Advocate replied to the effect that she had not ever been made aware of the relevant content of that material.
On that same day the DPP requested a statement from DSC Allan setting out her investigations into the alternative potential persons of interest. DSC Allan produced one immediately.
On 28 June 2021, prior to disclosure of the redacted material, the appellant’s solicitors had sent representations to the DPP that there be no further proceedings. Obviously enough, that letter did not rely on the Other Persons. It said that the Crown had now “appropriately disavowed reliance upon tendency evidence” and its case on identification came down to the DNA evidence and the mobile tower evidence. It made submissions about the possibility of secondary transfer. No particular reason was given as to why that was a realistic possibility, other than noting a point made in an expert document that the fact that there were two other DNA profiles in the mixture “enhances the possibility of secondary transfer”. It then made a forceful point with respect to the appellant’s phone linking to an Eastern Creek mobile tower shortly after the Robbery, saying that “[w]hile it does not entirely exculpate the accused, it does not meaningfully inculpate him in any way”.
On 2 July 2021 the DPP informed the Court that there would be no further proceedings. The reasons why this decision was taken are not disclosed. The DPP may have been persuaded by the reasons given in the representations letter which did not relate to the Other Persons, and/or the disclosures made with respect to those persons may have been seen as significant, and/or there may have been other reasons. DSC Allan gave evidence that she was surprised that the matter did not proceed, and believed that it should have done.
The District Court later awarded costs to the appellant, finding that “it was unreasonable for the proceedings to have been instituted” because there were “significant weaknesses in the Crown case”.
The appellant subsequently filed proceedings in the District Court alleging three torts. The primary judge found none of those torts to have been established. His Honour’s determination with respect to only one of those, misfeasance in public office, is now disputed.
The primary judge identified five elements of that tort based upon a statement by Deane J in Northern Territory of Australia v Mengel (1995) 185 CLR 307 at 370; [1995] HCA 65. The primary judge listed those elements in this way (at J[99]):
(1) an invalid or unauthorised act;
(2) done maliciously (or recklessly);
(3) by a public officer;
(4) in purported discharge of public duties; and
(5) causing damage to the plaintiff.
There was no dispute that DSC Allan was relevantly a public officer. Nor was it disputed that the State would be liable if DSC Allan had committed the tort: cf Mengel at 347. The primary judge held that the tort was not made out because:
as to the first identified element, DSC Allan’s conduct did not involve an invalid or unauthorised act (at J[107]) – a finding challenged on appeal by Ground 6;
as to the second element, the appellant had not proven that DSC Allan had acted maliciously, either on the basis that she had acted intentionally, with knowledge or with reckless indifference (at J[102]-[108]) – a finding challenged by Grounds 4-5 and 7-9;
as to the fourth, the duty to disclose certain information to the DPP under section 15A of the DPP Act did not constitute a public duty for the purposes of the tort (at J[100]-[101]) – a finding challenged by Grounds 10 and 11.
An important step in his Honour’s reasoning on the malice element was to “unhesitatingly find DSC Allan to be a witness truth” (J[55]), rejecting the appellant’s submission to the contrary. His Honour said:
[51] … Put simply, the plaintiff’s case was that DSC Allan was determined to convict the plaintiff at all costs, and that she deliberately withheld from the DPP the fact of there being, at one stage, other persons of interest. The plaintiff argued that DSC Allan did so in the knowledge that disclosure of those Other Persons would assist the plaintiff’s defence.
[52] I reject the plaintiff’s attack on DSC Allan’s credit. She presented as a steady and professional detective who had appropriate professional detachment from the prosecution. She was not shaken in cross-examination and made concessions where they were appropriate. She answered questions in a direct and straightforward manner.
[53] Her evidence, moreover, is corroborated by the objective evidence, being the documents which she created during the course of her investigation, especially her Case Report.
[96] In my view, the first element of that malice case can be readily rejected. It is hardly an improper purpose for a police officer to charge a person who she suspects has committed an offence, and then to seek to obtain a conviction. After all, that is what police officers do. Further, while it is correct that DSC Allan did not disclose her investigations concerning the Other Persons and she did redact material produced in answer to the subpoenas, the evidence concerning her motivation for doing so is evidence which, as I have indicated, I accept. As she repeatedly made clear in her oral evidence and as clearly demonstrated in the contemporaneous documents:
(1) The Other Persons who the plaintiff describes as “alternative suspects” were in fact only ever potential persons of interest at the beginning of the investigation based upon unsubstantiated intelligence. Following her investigations, DSC Allan properly discounted each of them as there was nothing linking any of them to the Robbery.
(2) At the time she charged the plaintiff, she did not consider the material as to the Other Persons to be relevant, she did not disclose the material, and at no time did she consciously withhold material that she considered she had a duty to disclose.
(3) Further, she later redacted material in response to the subpoenas because of her continuing view that the material was irrelevant and to protect the privacy of persons who had no involvement in the matter.
[97] Having regard to that consistent and credible evidence which I accept, there is simply no basis to find that DSC Allan acted for an improper purpose. To the contrary, I find that at no point did she consciously withhold information that she considered relevant to the prosecution of the plaintiff (T78.5), and at all times she genuinely believed the proceedings against the plaintiff were proper proceedings to bring before a court (T78.9).
Given my finding that DSC Allan genuinely considered the case against the plaintiff to be a proper one, and she genuinely considered the information concerning the Other Persons to be irrelevant, in my view, it is simply unarguable that she intentionally sought to harm the plaintiff, that she acted invalidly, let alone intentionally invalidly, nor that she intended to cause harm to the plaintiff.
This statement manifested a conclusion (amongst other things) that the first element of the tort of misfeasance in public office identified by Deane J in Mengel had not been made out, namely that the conduct complained of involved “an invalid or unauthorised act” (his Honour’s formulation is quoted below at [75]). Ground 6 challenged that finding by asserting that the primary judge erred in failing to find that DSC Allan breached her duty under s 15A of the DPP Act by failing to disclose to the DPP the information, and documents recording the information, concerning the Other Persons investigated for the Robbery. In response, the State acknowledged that a District Court judge had held that the material did have to be disclosed; argued that in major investigations there could be thousands of pages of material involving potentially numerous possible persons of interest who were then ruled out; said that “police officers have to make a judgment under 15A [where] these matters are not clear cut”; and did not concede that DSC Allan had failed to comply with the section.
In considering Ground 6 it is necessary to address how a court is to approach arguments about non-compliance with s 15A in a case such as this, and then consider whether non-compliance by DSC Allan is established. These arguments themselves have to be understood in the context of the nature of the first identified element of the tort, in particular whether and how that element encompasses conduct by omitting to comply with a duty.
Grounds 10 and 11 relate to the fourth element of the tort identified by Deane J, that is, that the impugned conduct was done in the purported discharge of a public duty. The primary judge addressed that element as follows:
[100] There was no issue other than that DSC Allan, in charging the plaintiff, was a public officer and her acts were done in the purported discharge of public duties. The defendant submitted, however, that the duty to disclose under s 15A of the DPP Act was not a public duty, but was rather a duty owed to the DPP.
[101] I agree with this submission.
His Honour did not provide any further reasons for his finding in relation to the “public duty” aspect of the tort. The adequacy of that reasoning is the subject of Ground 11 of the appeal. It is clear that the reasoning is inadequate. None was provided. His Honour merely stated a conclusion. However, the appellant recognised that the issue is one of law which this Court can address for itself, and thus pressed Ground 11 only to the extent it supports Grounds 1-3. Yet his Honour’s inadequate reasoning on this point adds nothing of significance to the analysis on those grounds, as it relates to a distinct legal topic. Ground 11 can therefore be set aside.
Ground 10 of the appeal is that the primary judge erred in finding that the duty to disclose under s 15A of the DPP Act was not a public duty for the purposes of the tort of misfeasance in public office. The appellant argued that DSC Allan was exercising public powers in performance of a public duty, being the duty imposed by s 15A as understood in its statutory context, and further that it was unnecessary that any duty be owed to the appellant in particular. The State responded that s 15A imposes a duty owed to the DPP and not to an accused person nor to the public generally, where it was necessary that the duty be owed to the claimant or a class encompassing the claimant. It argued that any connection between compliance with the duty and an effect on the accused was indirect, being mediated by the conduct of the DPP, who was subject to further separate legal duties. Further, it said that the tort requires that the duty be coupled with an exercise of power of the office in question, where here the duty was “not attached to the office of police officer specifically” but was “attached to the function of being an investigating officer”.
These arguments raise issues about the nature of the tort. For the purposes of both Grounds 6 and 10 it is necessary to consider if and how the tort applies to conduct of a public officer omitting to comply with a statutory duty such as that set out in s 15A. For the purposes of Ground 10 it is necessary to address whether and to what degree the public power being exercised must attach to the public office, and whether it is required that that officer owe some duty to the claimant in relation to exercise of that power. Thus before addressing those grounds it is necessary to consider relevant aspects of the tort. It is then convenient to address Ground 10 before considering Ground 6.
The appellant accepted that if he failed on Ground 10 then he could not win on the appeal as an element of the tort would not be made out. The same must be true with respect to Ground 6. Conversely, making out both grounds would not deal with his failure to make out the malice element of the tort, to which the other grounds of appeal were addressed.
Its elements are: (i) an invalid or unauthorised act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or harm to the plaintiff. That summary statement of the elements of the tort inevitably fails to disclose some latent ambiguities and qualifications of which account must be taken in determining whether a particular element is present in the circumstances of a particular case.
This formulation of the elements has been employed by this Court as an appropriate guide: see eg New South Wales v Spedding [2023] NSWCA 180 at [48]; New South Wales v JR [2024] NSWCA 308 at [141]; Ea v Diaconu (2020) 102 NSWLR 351; [2020] NSWCA 127 at [36] and [137]. It was also accepted by the parties here, though it is not the only formulation of the tort that has been applied by Australian courts since Mengel was decided: see eg Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59 at [97]; Habib v Commonwealth (No 2) (2009) 175 FCR 350; [2009] FCA 228 at [72].
The formulation must be understood in context. It does not purport to be an exhaustive statement of the tort. Notably, the notion of “done maliciously” involves some potential alternatives, as his Honour went on to recognise (at 370-371), and he included in that notion either (a) an intention to cause injury or (b) knowledge or reckless indifference (including deliberate blindness) to the invalidity or lack of power and to the likelihood of the claimant suffering harm. This Court subsequently has confirmed that where it is claimed that the public officer knew or was reckless to a lack of power then it is also necessary that the officer either knew or was recklessly indifferent to the likelihood of the claimant suffering harm, and mere reasonable foreseeability of harm does not suffice: Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71 at [153]-[172] and [222]-[242]; see also eg Garrett v Attorney-General [1997] 2 NZLR 332 at 349-351; Odhavji Estate v Woodhouse [2003] 3 SCR 263 at [22]-[25] and [38]. Justice Deane also stated that, subject to what he had said, he was “in general agreement” with the reasons of Brennan J for concluding that the tort was not made out in that case (at 371). I refer further to the judgment of Brennan J below.
The elements should not be viewed in isolation from each other. The first, third and fourth elements stated by Deane J are linked. They relate to a person of a particular character (a public officer) exercising a particular type of function (the purported discharge of their public duties) in a way which was invalid or unauthorised (the legal character of the purported discharge of the duties). Each of these aspects indicate that the focus of the tort is the unlawful exercise of governmental executive power: note Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553 at [50] (Allsop P). Justice Gummow has observed that the tort “has been said to be the only tort having its roots and application within public law alone”: Pyrenees Shire Council v Day (1998) 192 CLR 330; [1998] HCA 3 at [124] (citation omitted); note also Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146; [2008] HCA 32 at [11]. Professor Aronson has said that misfeasance in public office is “the common law’s only truly public law tort”: Mark Aronson, “Misfeasance in Public Office: Some Unfinished Business” [2016] 132 (July) LQR 427 at 428.
The Victorian Court of Appeal suggested that the tort “may extend to the wrongful exercise by a holder of a public office of a judicial power where that power is sought to be exercised without jurisdiction and in bad faith”: Cannon v Tahche (2002) 5 VR 317; [2002] VSCA 84 at [48]. If ever that was so it can now be taken to have been precluded by the confirmation that judicial immunity at common law extends even to invalid and malicious decisions of inferior courts: Queensland v Mr Stradford *(*a pseudonym) [2025] HCA 3; (2025) 99 ALJR 396.
It has been recognised that it is important to keep the operation of the tort within due bounds. A key reason for caution in expanding the reach of the tort is to avoid the potential for personal liability of public officers distorting the choices they make when exercising power: Mengel at 358 (Brennan J). A similar concern is one of the bases of the doctrine of judicial immunity: note Stradford at [74]-[75], [205], [257]. That concern must be balanced with the compensatory object of the tort. As was said by the majority in Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64:
[37] … Inappropriate imposition of liability on public officials may deter officials from exercising powers conferred on them when their exercise would be for the public good. But too narrow a definition of the ambit of liability may leave persons affected by an abuse of public power uncompensated. The tort of misfeasance in public office must seek to balance these competing considerations.
The tort “is concerned with misuse of public power”: Sanders at [37]. Lord Bridge said in Calveley v Chief Constable of the Merseyside Police [1989] AC 1228 at 1240 that the tort “must at least involve an act done in the exercise or purported exercise by the public officer of some power or authority with which he is clothed by virtue of the office he holds”. Similarly, Brennan J said in Mengel that “[a]ny act or omission done or made by a public official in purported performance of the functions of the office can found an action for misfeasance in public office” (at 355). And in Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1, at 191, Lord Steyn identified one of the elements of the tort as “the exercise of power as a public officer”.
The fourth element identified by Deane J in Mengel – “the purported discharge of his or her public duties” – must be understood in this context. The word “duties” here simply refers to the functions attached to the public office in question (see the similar usage in Lockley at [100]). His Honour was not suggesting that the tort can only apply where there is some kind of duty that the power be exercised. Such an understanding would not be consonant with the rationale of the tort. Powers associated with public officers will commonly be discretionary ones. Sometimes powers are connected with a duty. Frequently they are not. A power, say, to revoke a licence or prohibit an activity can be maliciously misused to cause harm to a person regardless of whether or not the power is associated with either a duty to consider exercising the power or a duty to exercise the power if certain evaluative criteria are found to be satisfied. Consistently with this understanding, in Sanders the majority said at [37] that the tort “is concerned with misuse of public power”, then said at [39] by way of reiteration that the tort “is concerned with performance of public duties”. As Spigelman CJ said in Leerdam, these statements in Sanders confirm that “[t]here is no relevant difference … between authorities which use the language of ‘duty’ and those which use the language of ‘power’” (at [4]; see also Allsop P at [50]).
The notion of there being a contravention of some duty may well be important in cases where the claimed unlawful conduct was a failure, being an omission, to comply with an applicable legal duty. That issue is considered below.
What is meant by public power in this context? Power involves the capacity to act in a way which may affect another person’s rights or interests: see eg Nyoni at [163] (Dowsett J, in dissent on the facts). That understanding is consistent, for example, with the class of administrative decisions presumed to be subject to a duty to accord procedural fairness: see eg Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 at [75]. Public power is relevantly governmental executive power which involves decision-making in the public interest in some broad sense, perhaps as set out in particular criteria, as opposed to the pursuit of self-interest which may motivate non-governmental actors: see Lockley at [114], quoted below at [89]; note further NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35 at [49]-[51] and [57]-[64]; Aronson MULR at 12. As Slade LJ said in Jones v Swansea City Council [1990] 1 WLR 54 at 71; [1989] 3 All ER 162 at 175, the tort arises where a public officer “has misconducted himself by purporting to exercise powers which were conferred on him not for his personal advantage but for the benefit of the public or a section of the public”; see further eg R v Whitaker [1914] 3 KB 1283 at 1296; R v Cosford [2014] QB 81; [2013] EWCA Crim 466 at [34].
A public duty is one which moderates the exercise of public power, doing so in a way which also can be characterised broadly as serving the public interest.
The public power said to have been misused must be attached in a meaningful sense to the public office. That requirement is manifest in the statements quoted above at [82]. It reflects the fact that the tort is specific to governmental decisions. As was said in Sanders, it “is concerned with misuse of public power” (at [37]). The requirement has been applied in a number of intermediate appellate decisions in Australia. In Emanuele v Hedley (1998) 179 FCR 290, at [34], the Full Court of the Federal Court indicated it was necessary that the claimant impugned “actions done in the exercise of powers attaching to a public office”; see further Nyoni at [109]. The point was reiterated and applied by the Victorian Court of Appeal in Cannon (at [28]), and the Court then spelt out the corollary that “an office cannot be characterised as a public office for the purposes of the tort if no relevant power is attached to it” (at [49]). In Leerdam Macfarlan JA, relevantly in agreement with Cannon, stated that “an office cannot be characterised as a public office for the purposes of the tort if no relevant power is attached to it” (at [100]).
Similarly, Bathurst CJ in Lockley, speaking for this Court, reviewed relevant Australian authorities and concluded that:
[103] … the act complained of must be the exercise of a public power. However, the cases provide no clear statement of what constitutes the “holding of a public office”, or whether the power exercised has to be “attached” to the public office, or whether it is sufficient that the public officer by virtue of their position is entitled or empowered to perform the public acts in question. However, in my view, the power does not have to be expressly attached to the office.
[114] … a “public officer” would at least include persons who, by virtue of the particular positions they hold, are entitled to exercise executive powers in the public interest. If such an entitlement is conferred on them and they misuse the power, they may have committed the tort and be liable for damage which results from their conduct.
On that basis, the Chief Justice concluded that two employees of ICAC who were designated “senior investigators” and exercised statutory powers available to such investigators were public officers, even though other people could also exercise that power (at [116]-[118]).
A purported exercise of a non-existent public power can suffice to make out the tort. That is, the tort can encompass exercise of a claimed governmental power said to be attached to the public office where in fact there was no such power: Mengel at 356 (Brennan J); Odhavji at [19]; Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716 at 777. Illustrating the point, in Farrington v Thomson & Bridgland [1959] VR 286 liability was established against police officers who directed a hotelier to shut down his hotel for licence breaches when the officers knew at the time that they held no such power. That conclusion is not surprising given that an element of the tort is that the public officer has engaged in an invalid or unauthorised act. As was said in Sanders at [38], the tort “extends to acts by public officers that are beyond power”. An act might be invalid because it did not comply with a condition on the exercise of an available power, such as a condition to accord procedural fairness (see Sanders at [38]). An act might be invalid because it involved exercise of a power which was only available in certain circumstances which did not encompass those in the case at hand. It is only a small step along the spectrum to find that an act purporting to exercise a power attached to the office which did not exist at all could also found liability, being beyond power.
Three further potential issues relating to the requirement that there be a purported exercise of public power may be noted and set aside. First, this Court held in Ea that it was at least arguable that “the abuse of de facto powers, that is, the capacity to act, derived from the conferral of powers that make the office a public office, are within the scope of the tort” (quoting White JA at [127]). On that basis it was held that the matter should not have been summarily dismissed and it was sent back for trial (it seems the matter was settled or discontinued, as no further judgment was delivered). That issue does not arise here.
Second, and relatedly, whether an action taken as an exercise of the ordinary capacities of legal persons falls within the notion of public power in this context is another question that arises about the tort: note eg Tampion v Anderson [1973] VR 715 at 720; Leerdam at [108]-[109]; Aronson MULR at 39-41; Nyoni at [163]-[165] (Dowsett J dissenting); cf Nyoni at [107] and [118] (North and Rares JJ). Again, that issue does not arise here given my finding below about the nature of the conduct of DSC Allan in failing to comply with s 15A.
Third, governmental executive power, including statutory decision-making power, can be exercised by persons not employed by government who are appointed or contracted to act on an ad hoc basis. Some such powers are capable of being subject to judicial review: eg Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190; Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158. It is not necessary here to address if, when and to what extent such exercises of power can be subject to a misfeasance claim.
The first element of the tort identified by Deane J in Mengel was “an invalid or unauthorised act”. The notion of an invalid act is readily understood, being an action taken beyond power. The notion of an unauthorised act implicitly extends to something further. It can be understood to encompass conduct by public officers which involves a failure to comply with a legal duty which applies with respect to the exercise of some public power which is sufficiently attached to the office in question. That the duty must relate to the exercise of such a public power flows from the principle, addressed above, that the tort applies to exercises of public power attached to a public office (at least to the extent explained in Lockley at [113]-[114]). That the tort can encompass an omission to comply with a legal duty is supported by the following case law.
Brennan J said in Mengel (at 356) that:
the purported exercise of power must be invalid, either because there is no power to be exercised or because a purported exercise of the power has miscarried by reason of some matter which warrants judicial review and a setting aside of the administrative action. There can be no tortious liability for an act or omission which is done or made in valid exercise of a power. A valid exercise of power by a public officer may inflict on another an unintended but foreseeable loss — or even an intended loss — but, if the exercise of the power is valid, the other's loss is authorised by the law creating the power. In that case, the conduct of the public officer does not infringe an interest which the common law protects.
Although his Honour there addressed invalid exercises of power, on the preceding page he had quoted Best CJ referring to an action being available “if a public officer abuses his office, either by an act of omission or commission …”: Henly v The Mayor of Lyme (1828) 5 Bing 91 at 107-108; 130 ER 995 at 1001. Justice Brennan then stated that “[a]ny act or omission done or made by a public official in purported performance of the functions of the office can found an action for misfeasance in public office” (at 355).
In Leerdam this Court proceeded on the understanding that the tort could extend to acts or omissions (at [156]), as did the Western Australian Court of Appeal in Neilson v City of Swan [2006] WASCA 94; (2006) 147 LGERA 136 at [42]. So, too, did the New Zealand Court of Appeal in Garrett (at 344).
In Three Rivers the pleaded case included a failure by the Bank of England to act to revoke a bank licence where it was alleged that such action was required. The House of Lords held that the tort could apply to an omission: at 194, 197, 228, 230 and 237. Lord Hobhouse said (at 230, citations omitted):
The argument before your Lordships has touched upon the question whether omissions as well as acts can give rise to the liability in this tort. I would answer this question by saying that the position is the same as in the law of judicial review. If there is an actual decision to act or not to act, the decision is amenable to judicial review and capable of providing the basis for the commission of the tort. If there is a legal duty to act and the decision not to act amounts to an unlawful breach of that legal duty, the omission can amount to misfeasance for the purpose of the tort. What is not covered is a mere failure, oversight or accident. Neglect, unless there is a relevant duty of care, does not suffice and the applicable tort would then be negligence not misfeasance and different criteria would apply.
The relevant act (or omission, in the sense described) must be unlawful. This may arise from a straightforward breach of the relevant statutory provisions or from acting in excess of the powers granted or for an improper purpose. Here again the test is the same as or similar to that used in judicial review.
It is no accident that the tort is misfeasance in public office, not nonfeasance in public office. The failure to exercise a power is not in itself wrongful. It cannot be equated with acting in excess of power. The tort is concerned with preventing public officials from acting beyond their powers to the injury of the citizen, not with compelling them to exercise the powers they do have, particularly when they have a discretion whether to exercise them or not. …
In my opinion, a failure to act can amount to misfeasance in public office only where (i) the circumstances are such that the discretion whether to act can only be exercised in one way so that there is effectively a duty to act; (ii) the official appreciates this but nevertheless makes a conscious decision not to act; and (iii) he does so with intent to injure the plaintiff or in the knowledge that such injury will be the natural and probable consequence of his failure to act.
In Odhavji – being another summary dismissal case – the impugned conduct involved police officers intentionally breaching a statutory obligation to cooperate with an internal investigation into a police shooting. The Canadian Supreme Court articulated a criterion of “deliberate unlawful conduct in the exercise of public functions” (at [32]). It held that this could be satisfied by the pleaded conduct, where “[o]n the face of it, the decision not to cooperate with an investigation constitutes an unlawful breach of statutory duty” (at [34]).
As referred to in Odhavji, and by Lord Hobhouse in Three Rivers, the relevant conduct must have been unlawful. The tort is not concerned with lawful acts or omissions. A positive act exercising a discretionary power will not be invalid in the relevant sense merely because a court later considering the issue might consider the power should have been exercised differently. Similarly, as explained by Lord Millett, insofar as the public officer had some discretion in deciding whether or not to act then there will be no unlawful or unauthorised act; see further Aronson MULR at 38-41. An omission relevantly can be characterised as unlawful where the failure to act was such that it would have been capable of being subject to an order by a court that the public officer exercise the power in a particular way to comply with the duty.
a plaintiff plainly must not only show damage from the abuse; he must also show that he was the member of the public, or one of the members of the public, to whom the holder of the office owed a duty not to commit the particular abuse complained of.
Summary dismissal of the claim was upheld, relevantly, because neither the inquirer nor counsel assisting owed any duty to the plaintiff about the conduct of the inquiry (in circumstances where the claimant had not complained about the way in which he himself was questioned).
The plaintiff in the Cannon case, decided in 2002, had been convicted of rape, which conviction was later overturned. He brought an action against a barrister from the private bar who had been retained to conduct the prosecution against him, and also against the instructing solicitor who was employed by the Director of Public Prosecutions. The claimed abuse of power was not disclosing to him or his counsel some information which was said to have undermined the veracity of the complainant’s account, where it was said that disclosure was required by the duty of disclosure applying to prosecutors. The Victorian Court of Appeal held that that duty “does not spring from any statutorily given power” but from practices established by judges designed to ensure a fair trial (at [56]); was “a duty owed to the court and not a duty, enforceable at law at the instance of the accused” (at [57]); was best described as “a discretionary responsibility exercisable according to the circumstances as the prosecutor perceives them to be” (ibid); and was “ethical in nature” (at [59]).
In that context the Court summarily dismissed the claim on two bases. First, neither the barrister nor solicitor held a public office but were merely performing a particular function and, relatedly, were exercising no “relevant” public power being power attached to the office required to be exercised for the public good (at [28], [49], [51]-[54] and [61]-[76]). This conclusion seemed to relate both to the role played by a prosecuting barrister but also to view that the duty of disclosure was owed to the court and was discretionary in the manner explained. Second, given the Court’s view of the nature of the duty, it “was not one owed to the plaintiff” (at [77]). That being so the plaintiff could not claim damages, applying the approach adopted in Tampion (at [28], [38]-[40] and [77]-[79]).
This Court’s decision in Leerdam, in 2009, concerned a claim brought against a solicitor and the law firm which employed him in relation to the conduct of a matter in the Administrative Appeals Tribunal seeking review of a refusal of a visa. The plaintiff claimed that he would not have been subject to immigration detention for a lengthy period but for the improper way in which the solicitors had acted for the Minister in opposing a grant of the visa. The specific complaint was failing to provide some particulars which had been sought, in breach of a duty of procedural fairness. The Court summarily dismissed the claim.
The Chief Justice and the President agreed with Macfarlan JA and with each other. Chief Justice Spigelman held that the solicitors held no public office when they were simply acting under a contract of retainer (at [17]-[18]) and, relatedly, were not exercising any public power or discharging any public duty (at [19] and [25]). President Allsop observed that the ethical duties of lawyers are not “transmogrified into governmental or executive duties or public duties if the lawyer is retained to act for the Executive in one of its manifestations” (at [53]).
Justice Macfarlan held that the solicitors “did not have the right or duty to exercise any power or authority of a public nature” (at [70]), as they “were not appointed to exercise public powers, but to perform a basically private, contractual role” (at [120]). In that regard his Honour approved and applied the first basis of the decision in Cannon (at [110]). However, as regards the second basis in Cannon his Honour referred to judgments which had concluded that there was no additional element about a duty being owed to the plaintiff (at [115]) and then said:
[116] In these circumstances, I would not base a decision that the claim against the applicants should be summarily dismissed or struck out upon the second ground of the decision in Cannon v Tahche. It is one thing to recognise that the powers or authorities under consideration must be of a public nature and that duties in respect of their exercise must be owed to the public. It is another to require the plaintiff to show also that a duty was owed to him in particular, or at least to a class of which he is a member.
As his Honour noted, there is authority contrary to the requirement stated in Tampion and followed in Cannon. In Mengel the plurality referred to the statement in Tampion that there was an additional requirement that there be a duty to the plaintiff, doing so without indicating approval or disapproval (at 346-347). However, Brennan J, with whom Deane J generally agreed, held that “there is no additional element which requires the identification of the plaintiff as a member of a class to whom the public officer owes a particular duty”, with a footnote saying “cf Tampion …” (at 357).
In Neilson the Western Australian Court of Appeal summarised relevant authority on the point, concluding that “it is at least reasonably arguable that it is not necessary for the plaintiff to establish that he or she is a member of a class to whom the public officer owes a particular common law or statutory duty” (at [66]).
In Three Rivers, Lord Steyn approved the conclusion of the primary judge in that case that there was no reason “why the plaintiff should identify a legal right which is being infringed or a particular duty owed to him” (at 193, see also Lord Hutton at 228 and Lord Hobhouse at 229). His Lordship continued:
any plaintiff must have a sufficient interest to found a legal standing to sue. Subject to this qualification, principle does not require the introduction of proximity as a controlling mechanism in this corner of the law. The state of mind required to establish the tort, as already explained, as well as the special rule of remoteness hereafter discussed, keeps the tort within reasonable bounds.
The suggested requirement was also rejected by the New Zealand Court of Appeal in Garrett in 1997, saying that the view adopted in Tampion “would move the tort right into the area occupied by the torts of negligence and breach of statutory duty and leave little room for its separate operation” (at 346).
In Odhavji the Canadian Supreme Court did not address the issue in terms, but did not include any such requirement in its articulation of the tort, and said that it is the need to demonstrate “a conscious disregard for the interests of those who will be affected by the misconduct in question [which] … establishes the required nexus between the parties” (at [29]).
In this context, I consider the tort of misfeasance in public office should not be understood to require a claimant to establish that the public officer owed them a duty either individually or as a member of a class “not to commit the particular abuse complained of” (quoting Tampion at 720). As explained above, the tort involves the purported exercise of a public power, being a power involving decision-making in the public interest. It commonly will make little sense to speak of such powers being subject to a duty to some person or persons not to be abused. In a normative sense, such powers should not be abused per se. The public generally has an interest in governmental powers not being abused in a broad sense. Whether or not a person can claim damages for such an abuse depends upon making out all the elements of the tort including, notably, that the conduct was invalid or unlawful and undertaken maliciously in the relevant sense. Insofar as there is a duty not to abuse the power in such a way as to harm the plaintiff it is the correlative of the right of the plaintiff to sue.
For some legal duties it is established that they can be said to be owed to some person or body, such as the ethical duties of lawyers being said to be owed to the court. That was the context of Tampion and Cannon, which made application of the claimed requirement simple. But the tort can encompass a wide range of administrative duties, along with powers not subject to a duty (see above at [83]). By reference to what criteria would it be established that some power, required to be exercised in the public interest, was subject to a duty not to be abused which arose prior to consideration of the tort? The common law has developed complex principles relating to when a statutory power may be subject to a common law duty of care sounding in negligence: see Electricity Networks Corporation v Herridge Parties (2022) 276 CLR 271; [2022] HCA 37 at [19]-[32]. It is difficult to see what further criteria might sensibly be developed with respect to a separate duty owed to some person or persons not to abuse the power in the relevant sense. It seems likely that beyond duty of care considerations, or rare instances where the duty was of an unusual nature such that it had already been established to be owed to some person or entity, the analysis would tend to be circular: the tort responds where there is a duty and there is a duty where the tort responds.
The very fact that the common law has developed rules about duties of care weighs against introducing such notions into another tort. That was the point made in Garrett, which also noted the potential overlap with the tort of breach of statutory duty (at 350). And in Mengel Brennan J rejected an argument that constructive knowledge of the absence of power sufficed for malice, doing so in part because it sought to introduce “concepts familiar in the law of negligence into the tort of misfeasance in public office to which … those concepts are foreign” (at 358). Coherence in the common law militates against introducing a further duty requirement here.
An argument could be made that the concern underlying the postulated requirement could be expressed in another way, namely that the claimant was a person who would have had sufficient standing to challenge the conduct of the public officer which is impugned, in the sense of seeking that an invalid decision be set aside or that a duty be fulfilled. Such a requirement would be coherent in that it would depend upon established legal principles relating to the ability to challenge the conduct said to be invalid or unlawful. It would also provide a further control mechanism on who could sue on the tort, that being the presumptive purpose of the requirement articulated in Tampion. Conversely, it might be said that such an additional control mechanism is unnecessary, consistently with the approach adopted in the United Kingdom and Canada. As this possibility was not the subject of argument it is not necessary or appropriate to consider it further: cf also Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7th ed, 2022) at [21.790] and [21.810].
The question then is whether there is a sufficiently compelling reason to depart from the two earlier decisions of intermediate appellate courts insofar as they held that the common law requires that the relevant duty be owed to a member of the public or class of members of the public. That is a question which may involve consideration of the factors identified by the High Court in John v Commissioner of Taxation of the Commonwealth of Australia (1989) 166 CLR 417 at 438–439; [1989] HCA 5: see Moriarty v Nye (2024) 114 NSWLR 560; [2024] NSWCCA 116 at [156]-[159]. The two decisions addressing the requirement did not rest upon a principle carefully worked out in a significant succession of cases. No supportive reasoning of note was supplied in Tampion or in Cannon. The additional requirement was rejected by Brennan and Deane JJ in Mengel. It has been doubted in this Court and in the Western Australian Court of Appeal. It has been rejected in the United Kingdom and New Zealand and not adopted in Canada. It has been doubted in academic writing: eg Aronson MULR at 33-35; Tina Cockburn and Mark Thomas, “Personal liability of public officers in the tort of misfeasance in public office – Part 2” (2001) 9 Torts Law Journal 245 at 246-249. It is not apparent that it has achieved any useful result. Cannon would have been decided the same way regardless of this point given that there was an independent basis for decision. The subsequent similar decision in Leerdam illustrates as much. It is likely that Tampion could also be understood on that basis. There is nothing to suggest that the requirement has been independently acted on in a manner which militates against reconsideration. In this context, I respectfully consider that there are sufficiently compelling reasons to depart from the two decisions in the respect identified.
Thus the common law does not require that a claimant suing on the tort of misfeasance in public office must establish that they were a member of the public, or one of the members of the public, to whom the holder of the office owed a duty not to commit the particular abuse complained of.
The tort of misfeasance in public office involves potential liability for malicious misuse of public power. Its requirements relevantly can be summarised (in a non-exhaustive manner) as follows:
It involves a particular type of person (a public officer) purporting to exercise a function (the exercise of a public power attached to the office) in a way which was invalid or unauthorised.
That exercise of power must have been undertaken maliciously in one of the relevant senses.
It must have caused loss or harm to the plaintiff.
As to the first of these requirements, public power is governmental executive power having the capacity to affect another person’s rights or interests, which power involves decision-making in the public interest in some broad sense, perhaps as set out in particular criteria, as opposed to the pursuit of self-interest which may motivate non-governmental actors. The public power said to have been misused must be attached in a meaningful sense to the public office, but that does not require that the power be exclusively or expressly attached to that office. It is not necessary that there be a duty to exercise the power, although the presence of such a duty will be important in cases involving conduct by omission. The notion of an unauthorised act encompasses an omission of a public officer to comply with a legal duty applying to the exercise of such a public power, where the failure to act was such that it would have been capable of being subject to an order by a court that the public officer exercise the power in a particular way to comply with the duty. It is not necessary to establish that the public officer owed a duty not to commit the particular abuse complained of to the claimant individually or as a member of a class.
As explained above, the primary judge adopted the conclusion that “the duty to disclose under s 15A of the DPP Act was not a public duty, but was rather a duty owed to the DPP” (J[100]). To the extent that the conclusion rested on the view that it was necessary that the duty be owed to the appellant individually or as a member of a class it must be rejected for the reasons just given.
Beyond that, the arguments of the parties in this Court joined issue on whether DSC Allan was exercising public power and subject to a public duty attached to her public office as a police officer in her conduct complying (or not) with the duty in s 15A of the DPP Act. The State did not dispute that DSC Allan was a public officer in the relevant sense within the tort. But it argued that the duty under s 15A was not specifically attached to the office of police officer but applied more generally to investigating officers, and was in any event a duty owed to the DPP. The State thus sought to invoke the first basis of the decision in Cannon, as also applied in Leerdam, that the function being exercised was not a “relevant power”, that is, not a public power attaching to a public office.
The argument is unpersuasive. To begin with there are significant differences between a police officer acting in their capacity as such and a barrister or solicitor acting on retainer for a client. The Police Act 1990 (NSW) defines a “police officer” to be “a member of the NSW Police Force holding a position which is designated under this Act as a position to be held by a police officer” (s 3(1)). Under s 11 of that Act the Police Commissioner is required to designate the positions to be held by police officers, where a position is to be so designated if the Commissioner relevantly is “satisfied that the holder will be required to carry out, or be concerned in, operational police duties”. Section 6(2) provides that the Police Force has functions “to provide police services for New South Wales”, to exercise any other function conferred by legislation, and to do anything necessary for or incidental to the exercise of its functions. Section 6(4) extends this statement of functions to being functions of members of the Police Force.
Section 6(3) states that “police services” includes “services by way of prevention and detection of crime”. In context, that notion encompasses investigating and assisting the prosecution of crimes, investigation being part of “detection”, and prosecution being one of the main aims of detection and a means of preventing crime (by deterrence). The exercise by police officers of various investigatory powers under, for example, the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) would involve exercise of police functions both insofar as they involved the prevention and detection of crime and as the exercise of functions conferred by other legislation.
The tasks undertaken by DSC Allan in investigating the Robbery involved, and only involved, an exercise as a police officer of these statutory functions. She was undertaking “operational police duties”, to quote the term used in s 11 of the Police Act. Her activities in compiling the brief of evidence for the prosecution of the appellant, and in interacting with representatives of the DPP, were undertaken to assist a prosecution arising out of her investigation of the Robbery. The precise statutory source of her power to undertake that function by complying with s 15A of the DPP Act was not identified by the appellant but there is no reason to doubt that her power was founded in statute. If nothing else, the obligation imposed by s 15A itself can be understood implicitly to provide power to comply with the duty there imposed.
Section 15A applied to DSC Allan in her capacity as a police officer when doing these tasks. At the time in question s 15A relevantly provided as follows:
15A Disclosures by law enforcement officers
(1) Law enforcement officers investigating alleged offences have a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person.
(1A) The duty of disclosure arises only if the Director exercises any function under this Act or Part 2 of Chapter 3 of the Criminal Procedure Act 1986 with respect to the prosecution of the offence …
(2) The duty of disclosure continues until one of the following happens:
(a) the Director decides that the accused person will not be prosecuted for the alleged offence,
(b) the prosecution is terminated,
(c) the accused person is convicted or acquitted.
(3) Law enforcement officers investigating alleged offences also have a duty to retain any such documents or other things for so long as the duty to disclose them continues under this section. This subsection does not affect any other legal obligation with respect to the possession of the documents or other things.
(4) The regulations may make provision for or with respect to the duties of law enforcement officers under this section, including for or with respect to:
(a) the recording of any such information, documents or other things, and
(b) verification of compliance with any such duty.
(5) The duty imposed by this section is in addition to any other duties of law enforcement officers in connection with the investigation and prosecution of offences.
(6) The duty imposed by this section does not require law enforcement officers to provide to the Director any information, documents or other things:
(a) that are the subject of a claim of privilege, public interest immunity or statutory immunity, or
(b) that would contravene a statutory publication restriction if so provided.
(7) The duty of a law enforcement officer in such a case is to inform the Director of:
(a) the existence of any information, document or other thing of that kind, and
(b) the nature of that information, document or other thing and the claim or publication restriction relating to it.
However, a law enforcement officer must provide to the Director any information, document or other thing of that kind if the Director requests it to be provided. …
(9) In this section:
law enforcement officer means a police officer, or a member of staff of one of the following agencies, who is responsible for an investigation into a matter that involves the suspected commission of an alleged offence:
(a) the Law Enforcement Conduct Commission,
(b) the New South Wales Crime Commission,
(c) the Independent Commission Against Corruption. …
The Director of Public Prosecutions Regulation 2020 (NSW) required that disclosures under the section be in a prescribed form and be signed and dated both by the officer and their relevant superior officer (cl 5). The prescribed form included a detailed acknowledgement of the duty, a certification that the information provided was true to the best of the officer’s knowledge and belief, and an undertaking to advise the DPP of any additional material subject to the duty.
It was not disputed that s 15A applied to DSC Allan as a police officer responsible for the investigation of the Robbery who was thus “a law enforcement officer” within the meaning of the section. That this duty applied to other types of investigators acting under other legislative regimes does not alter the fact that it applied to her in her capacity as a police officer exercising functions and powers as such. Here, as in Lockley, the fact that the duty applies to a range of persons does not preclude it from applying to her as a public officer.
The s 15A duty was to provide information to the DPP but that does not mean it was simply a duty moderating the relationship between law enforcement officers and the DPP. It was and is part of a set of statutory requirements regulating the disclosure of material in prosecutions.
For matters proceeding on an indictment, Ch 3 Pt 2 Div 3 of the Criminal Procedure Act 1986 (NSW) (CPA) regulates disclosure of evidence to the accused at the committal stage. Section 61 requires the prosecutor to serve a brief of evidence relating to each charged offence, and notes that the division is subject to, and does not affect the operation of, s 15A of the DPP Act. Section 62 outlines what the brief must contain, including copies of material that forms the basis of the prosecution’s case, and any other material “obtained by the prosecution” that is “reasonably capable of being relevant to the case for the accused person” or “that would affect the strength of the prosecution’s case”. The reference to material being obtained by the prosecution encompasses material provided to the DPP pursuant to s 15A.
Sections 141-144 of the CPA, within Ch 6 Pt 3 Div 3, deal with mandatory pre-trial disclosure after the filing of an indictment. The prosecution notice is required to disclose, amongst other things, a copy of any material provided by law enforcement officers (defined to include police officers) to the prosecutor “that would reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the accused person” (s 142(1)(i)). Again, that duty encompasses material provided under s 15A. Section 147 provides that the pre-trial disclosure obligations are continuing ones. Section 146 enables the court to impose various sanctions for failure to comply with the obligations beyond staying the prosecution, including excluding evidence not disclosed or granting an adjournment. The latter power would include delaying the start of a trial if the court was not satisfied due disclosure had been provided by a prosecutor. Under s 148(1) a court may make an order waiving any of the pre-trial disclosure requirements that apply under the Division, but only if of the opinion that it would be in the interests of the administration of justice to do so.
Separately, barristers and solicitors who act as prosecutors are subject to an ethical duty of disclosure: Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 87; Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), r 29.5.
A common law notion of a duty of disclosure on prosecutors was discussed by Leeming JA, speaking for the Court, in Marwan v Director of Public Prosecutions (NSW) [2019] NSWCCA 161; (2019) 278 A Crim R 592 at [27]-[30]. His Honour said:
[29] It is also to be borne in mind that the so-called “duty” is unusual. So too is what may loosely be described as the “right” of the accused to disclosure (both illustrate the way in which legal usage commonly departs from Hohfeldian exactness). For it is quite plain that the “duty” to disclose is not owed directly to an accused, so as to enforce the production of documents as might occur in civil litigation through discovery and interrogatories, or pursuant to freedom of information legislation. To the contrary, an accused person cannot ordinarily obtain an order that the prosecution disclose documents which have been withheld. Rather, the accused is entitled to a fair trial, and can insist that the trial be stayed, permanently or temporarily, if it can be established that that will not occur, absent adherence by the prosecution to that duty.
That statement about the common law duty not being directly enforceable by an accused is consistent with what had been said in Cannon, along with what had earlier been said, for example, by Deane J in Whitehorn v The Queen (1983) 152 CLR 657 at 665; [1983] HCA 42.
Those statements concerned the common law position. The extent to which the situation had altered in light of at least the provisions in the CPA was touched upon by Bathurst CJ, Fullerton and Beech-Jones JJ in Director of Public Prosecutions (Cth) v Kinghorn (2020) 102 NSWLR 72; [2020] NSWCCA 48. That appeal related to production on subpoenas issued by an accused who was seeking information relevant to his application for a permanent stay of a prosecution. Section 15A of the DPP Act did not arise in that case because it was a Commonwealth prosecution. Their Honours said:
[137] In the end result the debate about the extent to which the prosecutor’s duty of disclosure is enforceable reduces to the following four propositions.
[138] First, generally the performance of the duty is a matter for the prosecution and the Court will not review it or enforce it outside the powers it exercises to control its own processes.
[139] Second, a failure to comply with the duty may result in a stay being granted provided it is shown that there is “tangible risk that the trial would be unfair” or that the “trial is likely to be unfair” (see Marwan [24] to [26]). If the duty is not complied with and a conviction ensues then it can be set aside if a miscarriage of justice is demonstrated (Grey [v The Queen [2001] HCA 65; (2001) 75 ALJR 1708]; Mallard [v The Queen (2005) 224 CLR 125; [2005] HCA 68]).
[140] Third, if the documents or material the subject of the duty are not disclosed then a subpoena can be issued. Subject to claims for privilege and the like, it is likely that documents that fall within the duty will answer the test for production in response to a subpoena (Gould [v Director of Public Prosecutions (Cth*)* [2018] NSWCCA 109; (2018) 333 FLR 352] at [65] to [68]).
[141] Fourth, the Court can make orders to enforce compliance with the pre-trial disclosure provisions of the CPA which, to a significant degree, are co-extensive with the duty of disclosure.
[142] Ultimately, the combined effect of Gould and the pre-trial disclosure provisions of the CPA means that, with trials on indictment in this State, there should only be a relatively narrow scope for debate about compliance by the prosecution with its duty of disclosure and the means of enforcing it. That scope appears to be mostly confined to debates about the extent to which the prosecution must take steps, if any, to obtain information from other sources (as in Marwan) and cases such as this in which the material sought is the subject of claims for privilege or some other competing reason for non-disclosure.
[48] Prior to 2001, prosecution disclosure in New South Wales was governed by a patchwork of common law obligations, prosecution guidelines, and statutory and ethical rules. The common law required, and still requires, disclosure of all material that, on a sensible appraisal by the prosecution: (i) is relevant or possibly relevant to an issue in the case; (ii) raises or possibly raises a new issue that was not apparent from the prosecution case; and (iii) holds out a real (as opposed to fanciful) prospect of providing a lead in relation to evidence concerning (i) or (ii). Further, since the disclosure can occur prior to any crystallisation of the defence case, or any refinement of the prosecution case, expressions in relation to common law disclosure rules, such as “an issue in the case” or “all relevant evidence of help to the accused”, must be given a broad interpretation.
[52] This obligation was cognate with another amendment made by the same amending Act, which inserted s 15A into the Director of Public Prosecutions Act. … As the author of a contemporaneous parliamentary briefing paper observed, these legislative reforms were intended to introduce “a general duty of disclosure upon police officers involved in the investigation of an offence” and a corresponding obligation upon the prosecution to disclose to the defence “copies of any relevant information provided by the police to the prosecution”.
The purpose of the bill is to introduce a process where courts, on a case-by-case basis, may impose pre-trial disclosure requirements on both the prosecution and the defence to reduce delays and complexities in criminal trials. Pretrial disclosure in New South Wales is presently subject to ad hoc procedure and practice that diminishes consistency and certainty in case management. The present situation is regulated by a combination of common law rules, legislation, prosecution guidelines, Bar Association and Law Society rules and Supreme Court practice directions. This bill improves upon and formalises these requirements. …
The pre-trial disclosure model the Government puts forward is a case management model. It requires hands-on management when the court has applied the regime on its own initiative or when a party to the proceedings successfully seeks to apply the regime. …
Pre-trial disclosure carries significant benefits for the parties involved in a case, the courts and the criminal justice system generally. It enables the parties to focus on issues that are in contention, rather than having to prepare evidence in relation to issues that are not in dispute. This will result in the more efficient use of court time and the time of counsel and less inconvenience to witnesses whose evidence would not be challenged in any event. Adjournments in response to unexpected developments in the course of a trial would be minimised.
The defendant is in a better position to make an informed decision about whether to plead guilty based on the strength of the disclosed prosecution case. If the defence is pleading not guilty, they are assisted in preparing for the trial by being made aware of the prosecution case in advance.
Thus it was intended that the prosecution disclosure requirements in this State be statutory prescriptions which may be capable of judicial consideration, and at least a degree of indirect enforcement, whether in arguments about production on subpoenas, or in considering whether a matter was ready for trial or whether other case management orders should be made, or in deciding whether an adjournment should be granted. Illustrating the point, in R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247 an order was upheld which stayed sentencing proceedings until, amongst other things, the DPP had sought and obtained from the officer in charge all documents pertaining to a particular issue.
Section 15A of the DPP Act is part of this statutory framework, as was explained by McColl JA in Lipton (citation omitted):
[106] Section 7 of the DPP Act confirms the primary role the DPP plays in conducting prosecutions for indictable offences … The DPP cannot effectively discharge that role unless he has actual access to all information relevant to an issue in the case. Section 15A was, in my view, enacted to facilitate his discharge of his role. Mere advice that the police hold relevant information without the DPP knowing what that information is undermines his ability to discharge his duty to act fairly, inter alia, towards the accused.
The State submitted that s 15A is facultative and its purpose is to enable the Director to discharge their ethical and discretionary duty of disclosure to an accused. That submission does not recognise the significance of the statutory framework. The statutory requirements applying to prosecutors are no longer primarily ethical in nature, resting on the conscience of individual legal practitioners. As referred to in the Attorney’s second reading speech, they serve purposes of ensuring a fair trial, the orderly and efficient conduct of criminal proceedings including by identification of the real issues in dispute, and the early consideration of possible guilty pleas. They thereby pursue the public interest.
Nor do those requirements have the degree of discretion which the Victorian Court of Appeal in Cannon considered applied to the disclosure requirements there being discussed. That point is addressed further below in relation to Ground 6.
In this context s 15A should be characterised as imposing a public duty which serves the public interest. That duty moderates the exercise of public power by police officers exercising their functions under the Police Act, including those powers exercised by DSC Allan in the conduct at the centre of the appellant’s claim.
The primary judge was wrong to conclude that DSC Allan’s conduct in complying (or not) with the duty in s 15A of the DPP Act did not involve performance of a public duty in the sense relevant for the purposes of the tort of misfeasance in public office. Ground 10 of the appeal is made out.
The complaint made in Ground 6 is that the primary judge erred in failing to find that DSC Allan breached her duty under s 15A of the DPP Act by failing to disclose to the DPP the information, and documents recording the information, concerning the Other Persons investigated with respect to the Robbery. As discussed above, the question for the purposes of the tort is whether DSC Allan’s omission to provide that material can be characterised as unauthorised in the sense of being unlawful, such that it would have been capable of being subject to an order by a court that she exercise the power in a particular way to comply with the duty. If so, the question then is whether the material in question was required to be produced.
As noted, s 15A(1) provides that law enforcement officers relevantly “have a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person”. I have already held that the duty qualifies the exercise of a public power attaching to a public office.
The State was undoubtedly correct to submit that the nature of the criterion requires officers to make a judgment where matters are not clear cut. The State was also correct to argue that some investigations will involve numerous possible persons of interest who are then ruled out, and that disclosure of all such investigations and persons, no matter how remote, could not reasonably be required. The appellant implicitly accepted as much himself in submitting that material relating to JN and ME should have been disclosed, but not in the end making such a claim with respect to AT and TH. The section requires an informed evaluative judgement along a spectrum of potentially relevant material.
Consistently with that view, in Edwards Edelman and Steward JJ said the following of the related obligation in s 142(1)(i) of the CPA:
[64] Ascertaining what “would reasonably be regarded as relevant” for the purpose of s 142(1)(i) does not mandate an adjudication about the actual relevance of the information, document, or thing. Rather, it imposes a requirement to assess fairly the inherent likelihood that an item of evidence is going to be relevant to either the prosecution or defence case. The phrase “be regarded” directs attention to the potentiality of evidence to be relevant, and the phrase “would reasonably” excludes any necessity to disclose material that is only possibly or remotely relevant.
Although the judgement required by s 15A is evaluative, the duty is not qualified by subjective terms of what the officer believes or is satisfied might reasonably be expected to assist either side. It is expressed in mandatory objective terms, that is, the officer must disclose all information (etc) that might reasonably be expected to assist the case for either side. Further, as just discussed, the section was introduced as part of a suite of judicially enforceable provisions which served the purposes of ensuring a fair trial, facilitating the orderly and efficient conduct of criminal proceedings, and creating conditions to encourage the early consideration of possible guilty pleas.
In this context, the issue is not one depending upon the (reasonably) exercised discretion of the officer. It would have been possible for a court at the time to make its own decision about whether the duty had been complied with. As the State acknowledged, that is in fact effectively what occurred in the argument in the District Court in late June 2021 on the subpoena argument (see above at [55]). This understanding is consistent with the approach adopted by Edelman and Steward JJ in Edwards, who went on to express their own conclusion as to whether certain material should have been disclosed (at [65]-[66]). It is also consistent with the statement in Kinghorn at [142] that “there should only be a relatively narrow scope for debate about compliance by the prosecution with its duty of disclosure and the means of enforcing it”.
What, then, of this case? The appellant did not suggest that the decision by the District Court in June 2021 was determinative of the issue in this Court. In any event, any reasons given for that decision were not in evidence. Obviously enough, the material relating to JN and ME would not have reasonably been expected to assist the prosecution. As to whether it was material which might reasonably have been expected to assist the case for the appellant, in my view this is a borderline case. The “might” criterion does not set a high threshold for disclosure. Even so, if the question had been whether the conclusion reached by DSC Allan was reasonably open, I would have concluded that it was. The reasons she gave – both at the time and in her testimony – for having excluded JN and ME were cogent (see above at [32]-[37], and see also the analysis below at [227]-[239]).
However, the issue is not whether her conclusion was reasonably open but whether it was correct. In my view it was not. Despite the rational reasoning of DSC Allan, the defence case might well have sought to make use of the material relating to JN and ME to argue that there was at least a reasonable possibility that someone other than the appellant had committed the Robbery. The link between JN and the Robbery was that some family members had identified him from the released photos and that he was known to spray paint toy firearms to look real. True, mobile phone data suggested he – or at least his phone – was well away from the area at the time, which went a significant way towards undermining any assertion of relevance. Nevertheless, it does not require much imagination to see that resourceful defence counsel might still have sought to make much of the familial identification.
As for ME, the inculpatory evidence was identification by some unnamed informant from the released photos, combined with the facts that he was destitute, living not far from where the Robbery occurred, and seemingly seen leaving his car around the time of the offence, albeit in different clothing. Again, he does not seem a strong contender to be the offender, but that possibility cannot be said to be completely remote.
It will be recalled that DSC Allan indicated that she was concerned to redact personal information of people she had ruled out (see above at [51]-[54]). DSC Allan may well have been influenced to withhold that information by reason of the following warning as to disclosure recorded in the COPS system, which read:
CRIME STOPPERS RELY ON COMPLETE CONFIDENTIALITY TO OBTAIN INFORMATION AND PROTECT THE CALLER
Reference to the ‘source’ of this information MUST NOT be disclosed to offenders, suspects, the public, courts or any other person. For further information or advice, please contact the NSWP CRIME STOPPERS COORDINATOR.
There are good reasons to provide warnings and reminders to exercise care in, for example, disclosing documents or information which may be subject to claims of privilege, public interest immunity, statutory immunity or which may contravene a statutory publication restriction if so provided. So much is expressly recognised in s 15A(6) of the DPP Act. Yet even for such documents, s 15A(7) imposes a duty on the law enforcement officer to inform the DPP of the existence and nature of any such documents, information or things. The DPP then has a power to call for the material to be provided. Here, no relevant privilege or immunity was asserted by the State. Beyond that, the bare fact that material is confidential is not, in general, a reason not to disclose something when legally compelled to do so, at least in association with an identifiable public interest that goes beyond the private civil rights of the parties to the confidentiality obligation: see eg Richards v Kadian (2005) 64 NSWLR 204; [2005] NSWCA 328 at [46], [84] and at [160]; Crown Resorts v Zantran Pty Ltd (2020) 276 FCR 477; [2020] FCAFC 1 at [48]-[55] and at [104]-[105].
The Crime Stoppers warning was too broadly expressed and liable to lead police officers into error, as it may have done here.
Ground 6 of the appeal is made out. DSC Allan’s non-disclosure of the material relating to JN and ME involved an omission to exercise public power in order to comply with the public duty in s 15A of the DPP Act. Her conduct was thus relevantly unauthorised. The primary judge erred in failing to so find.
It was not disputed that the primary judge had a duty to provide reasons for his rejection of the appellant’s claim. The requirement to give reasons is a normal, though not universal, incident of the judicial process: see Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666–667; [1987] HCA 7; Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [54]–[59], [68], [92] and [147]. As was said in Ming v Director of Public Prosecutions (DPP) (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 at [26]-[29], the reasons for the existence of this duty include the following: a hallmark of judicial power is that it resolves disputes in a way that is reasoned; providing reasons facilitate justice being seen to be done; reasons enable the parties to understand the basis for the decision so as to consider exercising any rights to appeal, and enable an appellate court to review the decision for error; and formulating reasons is a discipline which promotes better decision-making.
There are related administrative law principles. A failure to address a “substantial, clearly articulated argument relying on established facts” may constitute constructive jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24]. A constructive failure to exercise jurisdiction arises where the decision-maker purports to have exercised the jurisdiction but in substance has not undertaken or completed the task of doing so because of failure to address some essential matter: Ming at [12]. Further, an administrative decision-maker with a duty to consider representations must, amongst other things, “have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them”: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [24]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 282 CLR 1; [2024] HCA 11 at [6].
The duty of judges to provide reasons involves issues beyond those involved in administrative law principles. Nevertheless, it is not necessary for judges to refer to every piece of evidence nor every argument made: see eg Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259, 280 and 282; Fletcher Construction v Lines Macfarlane and Marshall Ltd (2002) 6 VR 1; [2002] VSCA 189 at [157]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]-[66].
Three members of the High Court addressed the level of detail required of judicial reasons in DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 (see also Nettle J at [131]) (citations omitted):
[33] … At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge's conclusion”. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.
In Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, at 444, Meagher JA noted that the duty to provide sufficient reasons had to be balanced with the fact that “an overly onerous duty to provide reasons increases costs and delay in the judicial system which has the effect of undermining public confidence in the judicial system”. His Honour indicated that the adequacy of reasons should be assessed against the purposes which reasons serve.
In that context, where there is a duty on a judge to give reasons, in general those reasons should consider and address the core matters of law, fact or discretion in dispute between the parties in a reasoned way, such that the parties can consider the merits of any appeal. An appeal court considering the matter should be in a position to understand the essence of why the judicial officer came to the conclusions reached on those core matters. As was said in Ming at [43]:
what is required is that the judge expose the reasons for resolving a point critical to the contest between the parties, do justice to the issues posed by the parties’ cases, refer to evidence that is important or critical to the proper determination of the matter, and generally explain any conclusion on a significant factual or evidential dispute that is a necessary step to the final decision.
Cases sometimes arise where a judge has substantially reproduced one party’s submissions in giving reasons for judgment, perhaps without attribution. As noted above (at [161]), under administrative law principles decision-makers are required to bring their mind to bear upon matters relevant to their decision, and failure to do so may mean that decision-making task has not been undertaken or completed. No lesser requirement applies with respect to judges. The judicial process involves “an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined”: R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374; [1970] HCA 8. It must be the judge exercising judicial power who undertakes that process. Simply adopting one party’s submissions without considering those of the other party is an abdication of the judicial task, not a fulfilment of it: note similarly Bright v Westmoreland County 380 F 3d 729 (2004) at 731-732, quoted in Li at [124].
In this context it has been said a number of times that error will be established if it is demonstrated that the judge failed to bring “an independent and impartial mind” to bear on the issues for determination: eg Li at [43], [78] and [124]; Porter v The Queen (2024) 21 ACTLR 122; 2024 ACTCA at [83]; Atanaskovic Hartnell Corporate Services Pty Ltd v Kelly (2024) 307 FCR 256; [2024] FCAFC 137 at [32]-[33] and [155]; Cojocaru v British Columbia Women’s Hospital and Health Centre [2013] 2 SCR 357; 2013 SCC 30 at [13]. There is room to query this phrase. Referring to impartiality appears to raise issues of apprehended or actual bias, which are distinct types of error with their own established tests in Australia. In Canada this type of issue has been characterised as one of fairness and expressly linked to bias: Cojocaru at [12]-[22]. That express link has not been adopted in this country, and there is no reason here to intertwine this issue with the tests for bias.
As for the notion of “bringing an independent mind to bear”, strictly this might be said to involve some tautology. The very notion of a decision-maker bringing their mind to bear on the issues involved in a decision implies that it is their mind involved, not that of someone else. However, the adjective “independent” serves to emphasise the point.
Thus the core concern in such cases is whether the judge has failed to bring their own mind to bear so as independently to decide the issues in dispute before them: note Li at [49] and [52]; LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166; [2012] FCAFC 90 at [5]. Strictly this issue is not about adequacy of reasons per se but a deeper one relating to proper discharge of the judicial function. However, as the point is assessed by reference to the reasons given the two issues are closely linked.
The appellant referred to authority suggesting that reasons will be inadequate if the appeal court is unable to ascertain the reasoning upon which the decision is based or if “justice is not seen to have been done”: Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18. As explained above (at [160]), justice being seen to be done is one of the rationales for there being a duty on judges to provide reasons. As Basten JA explained in Li at [58], “the aphorism encapsulates a value or underlying rationale, not an applicable legal rule or legal principle”. A majority of this Court rejected arguments that it is a distinct criterion of adequacy of reasons or reasoning in Li at [57]-[58] (Basten JA) and [69] and [77]-[78] (White JA). Lest there be any doubt on the issue, that rejection was correct.
If reasons have been provided which satisfy the requirements of adequacy (addressing core issues etc), and if it has not been established that the judge failed to bring an independent mind to bear in determining the issues, then the requirements of the law will have been satisfied, and for that reason justice will be seen to have been done: note, to similar effect, Atanaskovic at [117] (Logan J). Where those requirements have been met, it is difficult to see what content some separate criterion of justice being seen to be done could have: note similarly Porter at [46].
Justice Brereton, in dissent in Li, took a different view. After considering certain cases, his Honour said:
[116] The authorities to which I have referred support the following propositions:
(1) reasons will be inadequate not only if it is not possible to discern from them the reasoning upon which the decision is based, but also if justice is not seen to have been done; and
(2) justice will not be seen to have been done if the “reasons” are such as to leave a reasonable person in the position of the unsuccessful party with a justifiable sense of grievance at the appearance that the decision-maker has not addressed attention adequately, or at all, to the arguments of the parties, and understood the unsuccessful party’s arguments and either accepted them, or, if rejected, that the rejection was based on a clear and rational process of reasoning.
However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge … may promote a sense of grievance in the adversary and create a litigant who is not only ‘disappointed’ but ‘disturbed’ … It tends to deny both the fact and the appearance of justice having been done.
There is a clear obligation upon a judicial officer to deal with relevant submissions made by parties to litigation. If this is not done, the parties are denied their proper rights of appeal and justice does not appear to have been done.
As explained above (at [164]-[165]), assessment of adequacy in any particular case may take account of the purposes of reasons, but that is not the same as saying that a distinct and sufficient criterion of inadequacy is that justice has not been seen to have been done.
As noted, the issue is whether the judge has failed to bring their own mind to bear independently to decide the issues in dispute before them. That is a matter for the appeal court itself to decide. It is a question of fact: Li at [78] (White JA). That is so even though the issue inevitably is evaluative. There is no reason to interpolate a notion of how a reasonable person would construe the reasons. Justice Brereton’s contrary view in that regard was tied to his Honour’s view that justice being seen to have been done was an independent criterion. A contrary view has also been taken in Canada, saying that “the alleged deficiency must be viewed objectively, through the eyes of a reasonable observer”: Cojocaru at [13]. However, as noted, the Canadian approach is tied to concerns about bias. The fair-minded lay observer test employed in the apprehended bias context in this country is “founded in the need for public confidence in the judiciary”: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [12]. In other contexts, involving assessment of the effect of a communication made to a wide group, it is appropriate to focus on ordinary or reasonable members of the class: eg Campomar Sociedad Limited v Nike International Limited (2000) 202 CLR 45; [2000] HCA 12 at [102]-[103]. Both contexts involve the perception of conduct by members of the public or a broad group. No such imperative arises here, where the question focuses on the task in fact undertaken by the judge, as assessed by the appeal court.
As with any claim of error, the persuasive burden falls on the party making the claim that the judge has failed to bring their own mind to bear on the issues. To suggest that a judge has not done so involves a claim that they have not undertaken their core function. That is not a likely conclusion with respect to any judge and thus it is not one that will be reached lightly: see similarly Cojocaru at [22] and [27]; note analogously Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 171.
That a judgment substantially replicates one party’s submissions does not by itself establish the point or otherwise constitute legal error. Rather, as was said in Porter:
[79] The vice in the copying of a party’s submissions in a judgment is not in plagiarism or the appropriation of a party's intellectual property. Accordingly, determining whether a judgment has been vitiated by unattributed copying does not involve an assessment of the proportion of original material contained in the judge's reasons. Rather, the question to be asked is whether the copying is such that it should be inferred that the primary judge has not made an independent decision on the whole of the evidence and the law.
Similar points have been made by other courts: Amaca Pty Ltd v Werfel (2020) 138 SASR 295; [2020] SASCFC 125 at [16]-[17]; Atanaskovic at [145] and [156]-[158]; Cojocaru at [1] and [35]. The assessment involved will commonly be one of fact and degree, with quantitative and qualitative dimensions (note Porter at [80]). Notably, if the whole of a judgment is in substance copied from one party’s submissions then a question would arise as to whether the judge had brought their own mind to bear. That said, in such a case it may well be that the judgment would not address significant evidence relied on, or submissions made by, the opposing party. There would then have been a failure to provide adequate reasons, and it would not be necessary to address the issue of whether the judge had brought their own mind to bear on resolving the issues. LVR was, in effect, such a case.
No doubt “[a]s a general rule, it is most unwise to engage in wholesale copying of submissions without attribution”: Amaca at [16]. However, if the submissions of one party are persuasive then it is not surprising that the judge will draw upon them in providing reasons. Doing so may be efficient in a busy court: note King v Australian Securities and Investments Commission [2018] QCA 352; (2018) 134 ACSR 105 at [61]-[65]. In some (rare) cases it may be difficult to improve upon the submissions made by one side. The following observations of the Canadian Supreme Court in Cojocaru are apposite:
[35] The concern about copying in the judicial context is not that the judge is taking credit for someone else’s prose, but rather that it may be evidence that the reasons for judgment do not reflect the judge’s thinking. They are not the judge’s reasons, but those of the person whose prose the judge copied. Avoiding this impression is a good reason for discouraging extensive copying. But it is not the copying per se that renders the process of judgment writing unfair. A judge may copy extensively from the briefs in setting out the facts, the legal principles and the arguments, and still assess all the issues and arguments comprehensively and impartially. No one could reasonably contend that the process has failed in such a case.
[33] … Judgments routinely incorporate phrases and paragraphs from a variety of sources, such as decided cases, legal treatises, pleadings, and arguments of the parties. Appellate judges may incorporate paragraphs borrowed from another judge on the case or from a helpful law clerk. Often the sources are acknowledged, but often they are not. Whether acknowledged or not, they are an accepted part of the judgment-writing process and do not, without more, render the proceeding unfair.
2. The reasons of the trial judge were inadequate in that the nature and degree of unattributed copying and pasting of the respondent’s written submissions in the judgment was such as to suggest that the trial judge failed to give independent and impartial consideration to the evidence and the issues.
3. The trial judge’s reasons were inadequate in that justice is not seen to have been done, as the reasons are such as to leave the unsuccessful party with a justifiable sense of grievance because, by reason of the nature and degree of unattributed copying and pasting of the respondent’s written submissions in the judgment, it does not appear to be the product of the active application of an independent and impartial mind.
Ground 3 can be rejected immediately. It relies upon the approach adopted by Brereton JA in dissent in Li. As explained above, that approach was rejected by a majority of this Court in that case, and correctly so.
As for Ground 2, although that ground uses the word “impartial”, no argument was made to the effect that the judgment manifested apprehended or actual bias. Rather, the appellant’s complaint was (to quote his written submissions) that “the reasons do not demonstrate an independent decision on the whole of the evidence and the law”. As explained, strictly this type of complaint is not one about the adequacy of reasons, but rather about the judge’s own consideration of the issues, as manifest by the reasons for judgment.
It is clear from the Annotated Judgment that the primary judge adopted the DWS in the primary judgment to a substantial degree, both in terms of structure and content. Such adoption was of a level that is not to be encouraged. However, I am not persuaded that this unfortunate approach establishes that the primary judge did not bring an independent mind to bear on the issues in dispute. On the contrary, I am satisfied that his Honour did.
Although the appeal only seeks to overturn the findings as to one of the three torts in issue below, it is relevant here to take account of the whole judgment in considering the question at hand. So much was implicitly accepted by the appellant, with his submissions summarising the judgment as follows (footnote omitted):
i. Factual Background ([4]-[50])****. Every paragraph at PJ [4]-[50] is an unattributed copy from DWS [5]-[48], except for PJ [35], which is attributed, and PJ [36], which records “I agree with that contention”. The DWS appears to have been edited for manner and expression. Some detail is added regarding the 'red rooster robbery' in PJ [18]'s chapeau. No additional facts highlighted by the PWS or the reply are included. Of 46 paragraphs, only three are original or involve attribution.
ii. DSC Allan**'s Credit ([51]-[56]).** This section is mostly original. However, PJ [54], which is the only paragraph in the section that analyses the evidence relied upon to draw conclusions drawn about her credit, is copied from DWS [7].
iii. Assessment of claims [57]-[108]. The appellant propounded three claims at trial. As to each:
(a) False imprisonment. PJ [57]-[63] is copied without attribution from the DWS at [49]-[52], with slight amendment, except for [57] which was attributed. PJ [64]-[71], dealing with a Bail Act 2013 issue, is largely original.
(b) Malicious prosecution. PJ [72]-[97] is drawn without attribution from the DWS at [57]-[82], with exception of PJ [74] and [80] which are original, and aspects of PJ [73] and [92] which were attributed. There is minor editing and conclusory phrases inserted, or the words “in my view”.
(c) Misfeasance in public office. PJ [98]-[108] is drawn without attribution from PWS [85]-[92], excepting [98] (stating the elements were not in issue), and aspects of [100]-[101] and [107], which were attributed.
As stated at paragraph [14.a] above I have earlier indicated, the plaintiff was identified by SC Williamson following her investigations of the plaintiff for fraud offences and a robbery of a Red Rooster outlet which occurred in July 2018 (the “Red Rooster Robbery”). The Red Rooster Robbery, which was also captured as CCTV footage, showed an offender of solid build, wearing similar clothes to those worn by the Subway offender. The Red Rooster Robbery was also conducted with a similar modus operandi as the Robbery. SC Williamson advised that the plaintiff had been charged with carrying out the Red Rooster robbery Robbery, to which charge he pleaded guilty. Following her inquiry from the matters raised by SC Williamson, leading to DSC Allan conducting conducted the following further inquiries: …
As for the primary judge’s finding as to DSC Allan's Credit at J[51]-[56], the appellant correctly accepts they are “mostly original”. The qualification then made by the appellant is that J[54] was “the only paragraph in the section that analyses the evidence relied upon to draw conclusions drawn about her credit” and was copied. That submission is not correct. Paragraphs 51-53 are quoted above at [64]. Paragraph 52 contains a key, independent finding as to the manner in which DSC Allan presented as a witness. And even in J[54] the primary judge had made some material additions. Given the nature of this case, and as addressed further below, the credit findings with respect to DSC Allan were critical. And in substance they were the judge’s own work.
With respect to his Honour’s dealing with the false imprisonment claim, the appellant correctly accepts that the seven paragraphs at J[66]-[71] dealing with bail are wholly original. Prior to that, J[64] was original, and confirmed that his Honour had considered the appellant’s written submissions in reply:
[64] The plaintiff’s decision to not challenge DSC Allan’s evidence going to her state of mind when determining whether to arrest the plaintiff was confirmed in the plaintiff’s written submissions in reply, in which the plaintiff indicated that he did not wish to be heard on those matters.
[80] The present case is not such a case. Here, there was no intentional withholding of information from the DPP by DSC Allan. Her evidence, which I accept, was that the reason she failed to disclose the Other Persons was that they had been cleared of involvement in the Robbery and, as such, in her view they were no longer relevant to the prosecution.
At J[85(3)], the primary judge acknowledged that the appellant placed great emphasis on the identification of JN by his relatives, demonstrating a conscious understanding of the appellant’s case in that regard. In addition, in that subparagraph, the Annotated Judgment shows his Honour added some emphasis of own to an adopted passage of the DWS: “More significantly, in my view, DSC Allan’s further investigations revealed JN lived in Stanmore, being nowhere near the Subway store …” (then summarising other aspects of the evidence relating to JN). The primary judge then said, in a sentence he had added: “To my mind, this represented powerful evidence exculpating JN”. These additions illustrate independent consideration and reaching of conclusions.
There were also paragraphs of reasoning in the DWS with respect to the claims in false imprisonment and malicious prosecution which were not adopted by the primary judge.
As regards the claim in misfeasance in public office, the discussion was relatively short because it was founded upon earlier findings. Even so, J[103] was original (expressed after referring to Mengel): “For reasons which I have earlier set forth, I find that DSC Allan did not have such an intention to cause the plaintiff harm”. And at J[107], the Annotated Judgment shows his Honour again added his own emphasis to a passage adopted from the DWS:
Given my finding that DSC Allan genuinely considered the case against the plaintiff to be a proper one, and she genuinely considered the information concerning the other persons Other Persons to be irrelevant, there is absolutely no basis for finding in my view, it is simply unarguable that she intentionally sought to harm the plaintiff, that she acted invalidly, let alone intentionally invalidly, nor that she intended to cause harm to the plaintiff.
Had the trial judge drafted afresh the summary of the evidence, it might be inferred that his Honour simply rejected as relevant the evidence relied upon by the appellant. However, where the trial judge simply adopted the respondent's summary, the proper inference is that the omission in the reasons followed from a failure to consider the material.
The argument does not advance matters. Given my conclusion that his Honour did bring an independent mind to bear on the issues, the reasons he gave – including the extensive reasons he adopted from the State – were his reasons. The adequacy of those reasons is to be judged on the ordinary principles outlined above.
The appellant’s main focus on this ground was on what was put in 20 paragraphs over four pages of written submissions provided below (PWS) under the sub-heading of “Malice” (noting that some of those paragraphs cross-referred to earlier submissions). Senior counsel for the appellant said that those pages were “the most important” with respect to issues not addressed, and that “[i]f the judge had dealt with that, then we would say the judge had complied, in respect of the credibility of Detective Allan”.
By way of context, the evidence in the hearing below was taken on 4-5 February 2025, and the matter then stood over for submissions to 4 March 2025, with provision made for exchange of written submissions in the meantime. Judgment was delivered on 28 March 2025.
The submissions in question in the PWS were under a heading relating to the claim for malicious prosecution. It was implicit in the submissions then made with respect to misfeasance in public office that those submissions on malice were invoked again for the purposes of that tort. Little attention seems to have been paid in closing submissions to the differences between the malice requirement for the two torts: cf A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [88]-[95]; Lockley at [153]-[172]. It is sufficient to assume here that the malice argument put below with respect to malicious prosecution was also a relevant argument for the purposes of the claim in misfeasance.
The manner in which the malice case was put below was articulated in the PWS as follows:
In essence, the plaintiff says that DSC Allan was motivated to punish the plaintiff for his suspected involvement in the robbery, and was also … motivated to obtain a conviction and thereby justify her decision to charge the plaintiff, despite there being evidence of alterative suspects.
I accept that there’s no evidence in respect of her having any personal animus towards Mr Tsakirios. The case is not put on that basis. The case is put on the basis that her conduct in the prosecution is explicable on the basis that she desired to get a result, and there is a distinction between desiring to get a result at all costs – which in this case, involved keeping evidence from the DPP and the accused – and bringing a wrongdoer to justice.
It is relevant to note that the appellant’s counsel below stated that the case as to malicious prosecution was “not put on the basis that she didn’t hold the subjective belief” that there was reasonable and probable cause for the prosecution. The appellant also implicitly accepted below that Briginshaw principles applied, recognising that “the allegations concerning malice are very serious”, although making the point that the standard of proof was still the civil standard. The primary judge accepted that such principles apply (J[73]-[74]).
In essence, the appellant argued below that DSC Allan acted with malice not because of any suggestion that she did not believe there was a good case to be made against him. Rather, it was that she was determined for him to be prosecuted and convicted at all costs, and for that reason did not comply with her duties of disclosure. In effect, what was alleged was a deliberate breach of her s 15A duties in order to increase the chance of the appellant being convicted. It does not appear that any substantive argument was made as to recklessness. The nature of the appellant’s case is illustrated by these questions put to DSC Allan in cross-examination:
Q. You persistently and deliberately withheld information about [JN] even after you were forced to produce the redacted material. Would you agree with that?
A. No.
Q. You did so because you knew it was relevant information that would have helped the plaintiff receive an acquittal.
A. No.
DSC Allan maintained in her evidence that she had not disclosed her investigations into JN and ME because (to quote one of her answers) “the information related to persons who were not involved in the matter to protect their personal and private details”. The issue in dispute went to the subjective reasons why DSC Allan did what she did. She denied the improper purpose attributed to her and gave an alternative explanation. In practical terms, if her denial was established to be false or wrong then the appellant’s allegation of malice likely would be made out by inference. If her denial was true, or at least if the primary judge was not positively satisfied that it was not true (taking account of the seriousness of what was suggested), then the allegation of malice would have to be rejected.
Unsurprisingly, in this context, counsel appearing for the appellant below submitted that the credibility of DSC Allan “[s]eems to be a critical issue in this case”. In this Court, senior counsel for the appellant similarly said that the credibility of DSC Allan “was the critical issue”. It was necessary, then, for the primary judge to consider the intertwined issues of the plausibility of the evidence she gave and its apparent truthfulness. Judges are required to consider not only how witnesses present but the “contemporary materials, objectively established facts and the apparent logic of events”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31].
Four stages of conduct were identified in the key paragraphs of the PWS: (i) non-disclosure after charging the plaintiff; (ii) post-subpoena conduct; (iii) post-production conduct; and (iv) evidence in the proceedings. The gravamen of the submissions relating to the first stage is captured by these concluding paragraphs:
The evidence which was not disclosed of the four alternative suspects (including [JN] and [ME]) was plainly relevant to the issue of identification, as well as being exculpatory, and were contained in documents which, on even the most conservative view, might reasonably be expected to assist the case for the plaintiff.
DSC Allan presented as an intelligent witness and has significant experience as a police officer. The Court should reject her suggestion that she is incapable of distinguishing between her personal opinion as to whether the alternative suspects committed the offence, and whether that information was generally relevant to the accused's case. The proper inference is that she knowingly breached what she understood to be (and were in fact) her disclosure obligations.
That DSC Allan acted in this way is explicable only by her purpose being the obtaining of the desired result (i.e. a conviction of the plaintiff) as opposed to bringing a wrongdoer to justice.
She told the solicitor, Mr Young, that the material contained “intelligence reports and repetitions”, which were “unrelated to the subpoena and/or the matter”. Those statements were false. Even if not relevant to the matter (which, for the reasons above, DSC Allan knew they were), they were plainly related to it.
The paragraph ended with an allegation, again, that her conduct “can be explained only by a purpose to obtain a conviction no matter the evidence or just result”.
With respect to the third stage, post-production conduct, it was said that when DSC Allan produced her statement requested by the DPP explaining her knowledge of and investigations into other persons of interest (see [57] above), she “used the statement to include matters which exculpated alternative suspects whilst omitting critical matters inculpating the alternative suspects, including the identification of [JN] by [his family members]”. The statement was said to be “profoundly misleading”. It was again suggested that the “only reason” for her conduct was to further the prospects of the prosecution being continued.
The submissions put relating to the fourth stage – DSC Allan’s testimony – also served to attack her credibility and draw the threads together (footnotes omitted):
DSC Allan’s evidence was profoundly unsatisfactory, being evasive, partisan, and at times absurd in what was an attempt to retrospectively justify each part of her prior conduct. Several examples are provided above, including the refusal to accept that identification was in issue at all, the insistence that evidence of alternative persons of interest would not be relevant, or even related to the matter, that a person’s [family member] would not be more capable of identifying them than a stranger, and so on. This presentation accords with DSC Allan being fixated upon the obtaining of a result, even at the expense of common logic, let alone justice.
Ultimately, DSC Allan’s conduct across the several stages of her initiation and maintenance of the proceedings cohere together to support a finding of malice.
[108] … Putting the plaintiff’s case at its highest, if, contrary to her understanding, the information as to the Other Persons ought to have been disclosed to the DPP pursuant to s 15A of the DPP Act, then in circumstances where she genuinely believed the information to be irrelevant such that she had no obligation to disclose it, the highest the case could rise against her is that her lack of disclosure was wrong, but unintentionally so. This is insufficient to establish the tort of misfeasance in public office.
Going back, then, to his earlier findings, at J[51]-[54] his Honour gave reasons for finding DSC Allan to be a witness of truth. Those reasons included how she had presented when giving evidence: “as a steady and professional detective who had appropriate professional detachment from the prosecution”. But the reasoning was not limited to demeanour, referring to her explanations for having ruled out the Other Persons and corroboration of her testimony with the objective evidence.
At J[80], when addressing the tort of malicious prosecution, the primary judge reiterated his acceptance of DSC Allan’s evidence that there had been no “intentional” (implicitly meaning ill-motivated) withholding of information from the DPP. His Honour then went on to address the reasonable and probable cause element of the tort:
[83] In my view, DSC Allan clearly subjectively believed the material before her justified setting the processes of the criminal law in motion. Throughout her evidence, DSC Allan consistently maintained that she honestly believed her arrest and charging of the plaintiff were warranted, and also that the proceedings she instituted were proper proceedings to bring before a court (for example, T78.9). I accept that evidence, which, as I have stated earlier, was consistent with her behaviour throughout the prosecution and with the contemporaneous material that she created. ...
[84] The plaintiff submitted that DSC Allan’s investigations into the Other Persons undermined the objective reasonableness of her decision to charge the plaintiff.
[85] I do not accept this contention for the following reasons:
(1) DSC Allan had discounted the Other Persons in September 2019, for reasons which she recorded contemporaneously. I have no reason to doubt that those reasons were genuine and, in any event, those reasons were compelling, given that as DSC Allan ultimately concluded that there was no evidence linking anyone other than the plaintiff to the offence. As I have indicated, I accept DSC Allan’s evidence as to her state of mind in that regard.
(2) The assertion that TH and AT might have been involved was entirely speculative and they were properly excluded by their DNA not matching the DNA at the Subway outlet, their lack of any other connection, and, in TH’s case, for physical reasons.
(3) The plaintiff placed great emphasis in this regard on the fact that certain members of JN’s relation thought they could identify him by still images taken from CCTV footage. In reality, in my view, those relatives were in no better position than DSC Allan to make such an identification, given the facial covering of the offender. While one of JN’s relatives said that they recognised the shoes and Mossimo top worn by the offender in the CCTV footage, those were not unique items, and DSC Allan was not able to find them on JN’s Facebook page. More significantly, in my view, DSC Allan’s further investigations revealed JN lived in Stanmore, being nowhere near the Subway store, he had no means of transport, no history of similar offences, and his phone placed him in the Sydney CBD area at the time of the Robbery. To my mind, this represented powerful evidence exculpating JN. As such, he was understandably discounted by DSC Allan as a suspect in September 2019.
(4) In the case of ME, beyond a bare unsubstantiated allegation that he was the offender and that he lived as a homeless person with his dog in a car parked approximately 1km away, there was nothing at all to link him to the Robbery. Nevertheless, DSC Allan investigated ME as a possible person of interest, but understandably discounted him given his clear lack of resemblance to the offender, his rambling incoherent appearance, his movements being different to the offender, and his having been observed in different clothes on the night. The fact that a police dog tracked an unknown and uncertain scent, to my mind, did not undermine the reasonableness of DSC Allan’s decision in that regard.
It can be seen that his Honour thus addressed the significance of the evidence relating to the Other Persons including, for example, the emphasis the appellant had given to the fact that JN had been identified by members of his family (see [211] above). He considered the reasons given by DSC Allan for discounting the Other Persons to be “compelling” (J[85(1)]). The reasons given were brief but cogent.
His Honour then came to address the malice element in the claim for malicious prosecution. He said, relevantly:
[96] ... Further, while it is correct that DSC Allan did not disclose her investigations concerning the Other Persons and she did redact material produced in answer to the subpoenas, the evidence concerning her motivation for doing so is evidence which, as I have indicated, I accept. As she repeatedly made clear in her oral evidence and as clearly demonstrated in the contemporaneous documents:
(1) The Other Persons who the plaintiff describes as “alternative suspects” were in fact only ever potential persons of interest at the beginning of the investigation based upon unsubstantiated intelligence. Following her investigations, DSC Allan properly discounted each of them as there was nothing linking any of them to the Robbery.
(2) At the time she charged the plaintiff, she did not consider the material as to the Other Persons to be relevant, she did not disclose the material, and at no time did she consciously withhold material that she considered she had a duty to disclose.
(3) Further, she later redacted material in response to the subpoenas because of her continuing view that the material was irrelevant and to protect the privacy of persons who had no involvement in the matter.
[97] Having regard to that consistent and credible evidence which I accept, there is simply no basis to find that DSC Allan acted for an improper purpose. To the contrary, I find that at no point did she consciously withhold information that she considered relevant to the prosecution of the plaintiff (T78.5), and at all times she genuinely believed the proceedings against the plaintiff were proper proceedings to bring before a court (T78.9).
These reasons built upon his Honour’s earlier conclusions.
The way in which appellant pitched his claim on malice was that DSC Allan deliberately chose not to disclose evidence relating to the Other Persons in order to pursue the prosecution at all costs; that this conclusion was the only rational inference open given the objective facts and the logic of events; and DSC Allan’s claims to the contrary should thus be disbelieved. In response, the primary judge gave cogent reasons for concluding that DSC Allan’s explanation of why she discounted the Other Persons was compelling and that she presented as a witness of truth. That approach was sufficient to address the appellant’s claim as to malice. Given those conclusions, it was not the case that the only rational inference was that DSC Allan’s purpose in not disclosing the evidence was to pursue the prosecution at all costs. In providing adequate reasons it was not necessary to address every argument, every example or every aspect of the appellant’s quite detailed arguments (see above at [162]-[166]). And the primary judge expressly indicated that his conclusion did not depend on the correctness of DSC Allan’s view as to what needed to be disclosed (J[108]).
The appellant made two specific arguments below about the second stage of conduct that were not addressed in terms (see above at [209]). First it was said that DSC Allan’s instructions to the solicitor that the redacted material contained “intelligence reports and repetitions” which were “unrelated to the subpoena and/or the matter” were false. Second, it was asserted that “[e]ven if not relevant to the matter … they were plainly related to it”. As for the latter point, the submission hinged on a subtle distinction drawn between being “relevant” and being “related” which did not need to be addressed. As for the former point, the truth of the explanation about relevance or relatedness was sufficiently addressed by his Honour’s reasons accepting her explanation for excluding the Other Persons. In relation to the use of the term “intelligence reports and repetitions”, the materials indicate that some of the police records were located within an “Intelligence Information System” and were found under a heading “Information Report Summary” under which there was a further heading “Intelligence Category”. DSC Allan gave evidence about creating an “intelligence report” after speaking to various persons. Her usage in that regard was illustrated in the following cross-examination:
Q. But nowhere in that intelligence report do you mention that the information had been supplied by [JN’s family member], do you?
A. No.
Q. That was pretty important information, you would agree, because we have [JN’s family member] identifying him--
A. No.
Q. --on the CCTV footage.
A. No, I would never put source details into an information report.
Q. But this is an intelligence report. Is that right?
A. Yes. Interchangeable. Information/intelligence.
Q. So, ordinarily, you would expect that intelligence reports might be treated confidentially. Is that right?
A. Yes.
It is apparent from the records that the intelligence reports fed into the Case Report. The Case Report is also replete with repetitive entries. In this context, there was nothing especially surprising about DSC Allan’s use of the language “intelligence reports and repetitions” in relation to what she was redacting. The point was not of sufficient significance to necessitate being addressed specifically in the primary judge’s reasons.
With respect to the third stage of conduct, the appellant also made a specific argument not addressed in terms, namely that the statement DSC Allan provided to the DPP was “profoundly misleading”, in particular because she did not include the fact that JN had been identified by his relations (see above at [211]). Yet the primary judge had explained that “those relatives were in no better position than DSC Allan to make such an identification, given the facial covering of the offender” (J[85(3)]), thus undermining the significance that the appellant attributed to the identities of those who raised a query about JN. Moreover, in his credit findings his Honour acknowledged the appellant’s submission that DSC Allan “deliberately withheld from the DPP the fact of there being, at one stage, other persons of interest” (J[51]).
The submissions in relation to the fourth stage were substantially addressed by his Honour’s consideration of how DSC Allan presented and her credibility. The appellant did give examples seeking to undermine her testimony, including notably her “refusal to accept that identification was in issue at all” (see above at [212]). That was somewhat odd testimony. But it cannot be said that the only plausible explanation of it was that she was “fixated upon the obtaining of a result”. It was plausible that DSC Allan in fact – rather stubbornly – took the view that having excluded the Other Persons they were no longer relevant and, in some way, that meant identity was no longer in issue. The primary judge explained his reasons for concluding that DSC Allan genuinely took the view that the Other Persons had been excluded such as to no longer be relevant. That was sufficient to address the point.
The reasons of the primary judge were adequate to meet the standards set in the cases and explained above. Ground 1 is not made out.
Grounds 4, 5 and 7 challenge certain factual findings of the primary judge. Grounds 4 and 5 challenge the primary judge’s finding that DSC Allan did not believe, or did not consider the possibility, that the material relating to the Other Persons was not relevant to the prosecution of the appellant and disclosable to the DPP. Ground 7 challenges the failure of the primary judge to find that DSC Allan misled the solicitor Mr Young about the content of the redacted material which included the information about alternative possible persons of interest. Grounds 8-9 build on those grounds in alleging that his Honour erred in finding that DSC Allan’s conduct was not malicious in the relevant sense.
The submissions made on these grounds were relatively brief. The appellant accepted that given the credit finding made by his Honour, and given the centrality of credit to the issues in dispute, in order to succeed on the factual grounds it was necessary to establish that his Honour’s factual conclusions were glaringly improbable or contrary to compelling inferences: Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55].
As to Grounds 4, 5 and 7, the appellant submitted that four key matters militated in favour of a finding that DSC Allan appreciated at all material times that information regarding the Other Persons was relevant to the prosecution of the appellant and thus disclosable.
The first matter was the inherent likelihood that an experienced police officer such as DSC Allan, who knew that identification of the offender was in issue, would consider that the evidence of the Other Persons might be relevant to an issue in the case. As addressed above, DSC Allan did not comply with her disclosure obligation under s 15A of the DPP Act. It follows that she should have disclosed at least the information regarding JN and ME, and should not have redacted that material in answer to the subpoenas. Furthermore, her conduct in taking that step without seeking any advice, for example from the solicitor, appears unwise. It follows that in my view an experienced police officer should not have acted in the way that DSC Allan did. There is thus some basis for questioning her evidence that she did not even consider the possibility that the information should be disclosed. But by no means is that claim wholly implausible. On the contrary, as I have explained above (at [153]-[154]), in my view her conclusion was not unreasonable even though I consider it erroneous. It is implicit in the appellant’s submissions that not every inquiry into a possible person of interest identified after a broad public request for assistance must be disclosed. What was involved was a judgement call. Police officers, even very experienced ones, may get those calls wrong without malice.
It is significant that there was no suggestion that DSC Allan had any personal animus to the appellant. The dispute before the primary judge was as to whether she had genuinely acted based on her (unduly narrow) conclusion as to relevance, or as to whether she was determined for him to be prosecuted and convicted at all costs (see above at [202]-[205]).
The facts here render it plausible that DSC Allan had genuinely reached the conclusion that the information in question was not relevant or disclosable. The appellant’s submission on this point focused on the position of JN, saying that “there was familial identification by appearance, a distinctive jumper and shoes, evidence that JN had access to fake firearms and cable ties, and a financial motivation”. Yet DSC Allan spoke to one of JN’s family members who (to quote DSC Allan’s testimony) “was not positive that it was him”. The appellant criticised the fact she had not spoken to other informant relations of JN , but it was not implausible that she might have thought that their certainty would not have arisen any higher than the relation to whom she had spoken. Further, DSC Allan herself compared photos of JN showing the clothing and shoes said to be similar and was not able to see that they were (see above at [32]).
Importantly, phone records ruled out JN being the offender if he was carrying his phone at the time (see above at [33]). The appellant made the point that people may commit robberies without carrying their phone. No doubt that is so, but it does not seem especially likely that a person committing a rather unsophisticated robbery would organise for their phone to be moving around on the other side of town at the time.
It is also significant that after gathering information about the appellant and the Other Persons, DSC Allan suspended the investigation due to no persons of interest being “positively identified”, pending a DNA profile being obtained for the appellant. That indicates she had, at the least, ruled out there being any maintainable case against the Other Persons. The appellant made the valid point that the ultimate issue was not whether it was likely that JN or others had committed the Robbery but whether the evidence might assist the appellant in raising a reasonable doubt. Nevertheless, the course of the investigations make it plausible that DSC Allan had, somewhat simplistically, ruled JN, ME and others out as being relevant to the case.
I have also noted above that DSC Allan may have been led astray by the overly broad Crime Stoppers warning about disclosure of confidential information (see above at [156]-[158]).
The second matter raised by the appellant was that DSC Allan’s course of conduct in redacting subpoenaed records, and claimed misleading of the solicitor retained in relation to the subpoena, suggested deliberate and ongoing efforts to hide that information. DSC Allan said that she redacted the information because it “related to persons who were not involved in the matter to protect their personal and private details”. The appellant argued that her explanation was “illogical” because she was supplying the material to the solicitor acting on the matter who presumptively would not disclose it unless relevant. The argument is unpersuasive. It is based on a contestable assumption, namely that DSC Allan would have believed that the solicitor would be able to, and would, himself decide what material was not disclosable and redact accordingly.
The appellant argued that even if the material was not exculpatory it “was plainly related to the matter”, where DSC Allan had said it was unrelated. She was cross-examined on the topic:
Q. But the redacted material was related to the matter, wasn’t it?
A. Well, they weren’t involved. There was no evidence to suggest they were involved. So, no. I didn’t believe they were.
Q. It was related to the investigation that you undertook in respect of the robbery. Correct?
A. Well, they weren’t involved in the robbery. So, no. I don’t believe--
Q. You keep saying they were not involved in the robbery.
A. Yes.
Q. So, you’re effectively acting as the arbiter of fact. Would you agree?
A. Well, there was no evidence to suggest there was any involvement.
Q. Why don’t you just leave it to the system to sort that out, Detective? Do you understand the question that I’m putting to you?
A. Not entirely.
This exchange captures DSC Allan’s approach to the information in question. The cross-examiner’s suggestion that her approach may have been misguided was well-made. But this evidence also suggests she genuinely did not grasp the distinction he was making between her considering the Other Persons had been ruled out and the possibility that that evidence might still have been related to the investigation.
The third matter relied on by the appellant was that DSC Allan omitted key details of her investigation into the Other Persons after the DPP explicitly requested a statement from her including “your knowledge/investigation into every suspect/POI in this case … ID is in issue … we need to rule out everyone” (this argument overlaps with the point addressed above at [220]). The appellant argued that this omission supports the inference that DSC Allan understood the significance of the information and was seeking to ensure the appellant could not use it. Her explanation was that “I wouldn’t put source information in there”. That explanation is consistent with her other evidence about protecting personal and private details. It is not inherently implausible, especially taking account of the Crime Stoppers warning.
The fourth matter was the claimed implausibility of aspects of the evidence of DSC Allan in attempting to justify her conduct (this argument overlaps with the point considered above at [223]). As already noted, there were some oddities in her evidence, such as her refusal to accept that identification was in issue. But those aspects are consistent with the impression, conveyed by her evidence, of an officer who took a somewhat simplistic approach to the issues involved in the prosecution of the appellant.
Taking all of the matters and arguments raised by the appellant together, I do not consider that they render it implausible that DSC Allan genuinely acted based on her conclusion as to relevance, rather than that she did not comply with her duties of disclosure because she was determined for the appellant to be prosecuted and convicted at all costs. The conclusion that the primary judge reached on the issue is by no means glaringly improbable or contrary to compelling inferences.
None of Grounds 4, 5 or 7 are made out. Grounds 8-9 depended upon success on those grounds and thus also must be rejected.
I would uphold Grounds 6, 10 and 11 of the appeal. Those Grounds are not, however, sufficient for the appeal to be allowed, as the element of malice was not made out. The appellant’s success on some legal arguments is not sufficient reason for costs not to follow the event. Accordingly, the orders of the Court should be as follows:
To the extent necessary grant leave to appeal.
The respondent’s notice of motion filed 6 February 2026 is dismissed, with no order as to costs.
Appeal dismissed.
Appellant to pay the respondent’s costs of the appeal.
**********
[2003] HCA 22
[2026] NSWCA 90
(2007) 230 CLR 500
(2020) 138 SASR 295
(2024) 307 FCR 256
(2004) 218 CLR 366
(1997) 48 NSWLR 430
(1966) 120 CLR 145
(2000) 202 CLR 45
(2002) 5 VR 317
(2010) 78 NSWLR 393
(2020) 276 FCR 477
(2020) 102 NSWLR 72
(2018) 266 CLR 1
(2003) 77 ALJR 1088
(2020) 102 NSWLR 351
(2021) 273 CLR 585
(2022) 276 CLR 271
(1998) 179 FCR 290
(2008) 237 CLR 146
(2002) 6 VR 1
(2003) 214 CLR 118
(2006) 66 NSWLR 186
(2009) 175 FCR 350
(1997) 188 CLR 159
(2021) 104 NSWLR 615
(1989) 166 CLR 417
(2000) 201 CLR 488
(2009) 255 ALR 553
(2019) 99 NSWLR 630
(2012) 203 FCR 166
(2024) 98 ALJR 956
(2019) 267 CLR 560
(1991) 21 NSWLR 725
(2022) 109 NSWLR 604
(2016) 259 CLR 180
(2024) 282 CLR 1
(2024) 114 NSWLR 560
(2003) 216 CLR 277
(1992) 67 ALJR 170
(2006) 147 LGERA 136
(1995) 185 CLR 307
(2017) 248 FCR 311
(2018) 98 NSWLR 258
(2022) 275 CLR 582
(2024) 21 ACTLR 122
(1986) 159 CLR 656
(1998) 192 CLR 330
(1970) 123 CLR 361
(2005) 64 NSWLR 204
(1998) 196 CLR 329
(2025) 99 ALJR 396
(1987) 10 NSWLR 247
(2015) 89 NSWLR 268
(2011) 243 CLR 181
(1938) 59 CLR 150
(1983) 152 CLR 657
(2011) 82 NSWLR 123
(2001) 75 ALJR 1708
(2005) 224 CLR 125
(2018) 333 FLR 352
(2019) 266 CLR 129
Leave to appeal granted to the extent necessary; the respondent’s notice of motion dismissed with no order as to costs; appeal dismissed; appellant to pay the respondent’s costs of the appeal.