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District Court 28 March 2025

Tsakirios v State of New South Wales

[2025] NSWDC 90

Public order & justice offences
TORT FALSE IMPRISONMENT MALICIOUS PROSECUTION MISFEASANCE IN PUBLIC OFFICE ARMED ROBBERY CHARGE

Citation: Tsakirios v State of New South Wales [2025] NSWDC 90
Court: District Court of New South Wales
Date: 28 March 2025
Judge: Weber SC DCJ

Background

In May 2019, an armed and masked offender robbed a Subway outlet in what the court called "the Robbery." The investigating officer, Detective Senior Constable Allan (DSC Allan), collected evidence from the scene including a cable tie that had dropped from the offender during the robbery. DNA testing later linked that cable tie to the plaintiff.

DSC Allan charged the plaintiff with armed robbery in November 2019. The Director of Public Prosecutions (DPP) subsequently assumed carriage of the prosecution, but ultimately withdrew the charges following representations made by the plaintiff's solicitors.

The plaintiff sued the State of New South Wales, contending it was vicariously liable for DSC Allan's conduct. He alleged that the charging and prosecution were unlawful, pleading three causes of action: malicious prosecution, false imprisonment, and misfeasance in public office.

  • Whether DSC Allan had reasonable and probable cause to charge the plaintiff with armed robbery, and whether she acted with malice, so as to ground a claim for malicious prosecution.
  • Whether DSC Allan remained the "prosecutor" after the DPP assumed carriage of the proceedings, for the purposes of the malicious prosecution claim.
  • Whether DSC Allan's arrest of the plaintiff was lawful under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), and whether a subsequent judicial refusal of bail broke any chain of causation relevant to the false imprisonment claim.
  • Whether DSC Allan's conduct amounted to misfeasance in public office, requiring proof that she acted with actual intent to harm, or with knowledge that her conduct was invalid and likely to cause injury.

Decision

Malicious Prosecution

The court found that DSC Allan had reasonable and probable cause to charge the plaintiff. The DNA evidence linking him to the cable tie, the physical similarities between him and the offender visible on CCTV, and other circumstantial material provided a proper basis for the charge. DSC Allan had also considered and ruled out four other persons of interest on legitimate grounds before charging the plaintiff. Although the plaintiff argued that DSC Allan had withheld relevant information about those other persons from the DPP, the court found she genuinely believed that information to be irrelevant and had no intention to conceal it improperly.

On the question of whether DSC Allan remained a "prosecutor" after the DPP took over, the court acknowledged the legal complexity but did not need to resolve it definitively, given its finding that malice was not established. The court found no evidence that DSC Allan bore any ill will toward the plaintiff or acted for an improper purpose. The malicious prosecution claim therefore failed.

False Imprisonment

The court found the initial arrest was lawful under section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), as DSC Allan had reasonable grounds to suspect the plaintiff's involvement. On the question of ongoing detention, the court applied the established principle, drawn from cases including New South Wales v Robinson [2019] HCA 46, that a judicial act such as a court's refusal of bail breaks the chain of causation between a police officer's conduct and subsequent imprisonment. Because the plaintiff's continued detention after arrest resulted from judicial decisions refusing bail, the State could not be held liable for that detention through any conduct of DSC Allan. The false imprisonment claim also failed.

Misfeasance in Public Office

This tort requires proof that a public official acted in bad faith, either intending to cause harm, knowing that their conduct was unauthorised and likely to cause harm, or being recklessly indifferent to that invalidity and likely harm. The court found none of those elements present. DSC Allan's failure to disclose information about the other persons of interest to the DPP, even if it turned out to be an error, was at most an unintentional mistake. An honest but incorrect belief that information is irrelevant does not satisfy the mental element required for misfeasance in public office. The claim failed on this basis.

Orders Made

  • Judgment and verdict for the defendant (State of New South Wales) against the plaintiff.
  • The plaintiff is to pay the defendant's costs.

Key Takeaways

  • The District Court confirmed that reasonable and probable cause for a prosecution is assessed by reference to the totality of the evidence available to the charging officer at the relevant time, including DNA results, CCTV analysis, and the officer's reasoned elimination of other suspects.
  • Where a court refuses bail following an arrest, that judicial act breaks the chain of causation between the arresting officer's conduct and the plaintiff's continued detention, precluding a false imprisonment claim against the State for that ongoing imprisonment.
  • A finding that an officer genuinely, if perhaps incorrectly, believed information was irrelevant is fatal to a malicious prosecution claim: absence of malice cannot be overcome simply by showing the prosecution ultimately did not proceed.
  • Misfeasance in public office requires proof of subjective bad faith. An unintentional failure to disclose material to a prosecuting authority, arising from a genuine (even if mistaken) belief about its relevance, does not satisfy the mental element of the tort.
  • In dismissing all three claims, the court applied the Briginshaw standard, noting that allegations of the kind made against DSC Allan required careful scrutiny given their gravity, but found the evidence fell well short of establishing improper conduct.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), s 46(1)
- Crimes Act 1900 (NSW), s 97(2)
- Criminal Procedure Act 1986 (NSW), s 66(1)
- Director of Public Prosecutions Act 1986 (NSW), ss 9(4)(a), 15A
- Evidence Act 1995 (NSW), s 97
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99(1)(a), 99(1)(b)(ix), 202

Cases
- A v State of New South Wales (2007) 230 CLR 500
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Hyder v Commonwealth of Australia [2012] NSWCA 336
- New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46
- Northern Territory v Mengel (1995) 185 CLR 307
- Nyoni v Shire of Kellerberrin [2017] FCAFC 59
- Obeid v Lockley [2018] NSWCA 71
- Reeves v State of New South Wales [2024] NSWCA 125
- Ruddock v Taylor (2005) 222 CLR 612
- State of New South Wales v Cuthbertson [2018] NSWCA 320
- State of New South Wales v JR; State of New South Wales v Dickens; State of New South Wales v Jensen [2024] NSWCA 308
- State of New South Wales v Spedding [2023] NSWCA 180
- Thomas v State of NSW (2008) 74 NSWLR 34
- Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1