In Tsakirios v State of New South Wales [2026] NSWCA 132, the New South Wales Court of Appeal found that an investigating police officer breached her statutory disclosure duty by failing to disclose information about alternative suspects. The decision confirms that police disclosure obligations are public duties. However, even where a failure to disclose amounts to an unauthorised exercise of public power, a claim for misfeasance in public office will fail without evidence of malice.
What Happened?
In May 2019, a masked and armed offender robbed a Subway restaurant in Kings Park, Sydney. Terry Tsakirios was charged with the robbery in November 2019. The charges were withdrawn in July 2021.
Mr Tsakirios later brought claims against the State of New South Wales for false imprisonment, malicious prosecution and misfeasance in public office.
A key issue was material concerning two other people who had been investigated as possible suspects. That material was not provided to the Office of the Director of Public Prosecutions and was eventually disclosed through a contested subpoena process.
After his claims were dismissed at first instance, Mr Tsakirios appealed only in relation to his claim for misfeasance in public office.
What did the Appeal Court find?
Section 15A of the Director of Public Prosecutions Act 1986 (NSW) requires investigating officers to disclose material that might reasonably be expected to assist either the prosecution or the accused.
The Court found that the alternative suspect material should have been disclosed because it may have assisted Mr Tsakirios in advancing an alternative suspect defence. Importantly, the test is objective. The question is not whether the investigating officer considered the material relevant, but whether it might reasonably have been expected to assist the defence.
The Court also rejected confidentiality concerns as a basis for withholding the material. Any issue involving confidentiality, privilege or immunity should instead have been raised with the DPP through the statutory disclosure process.
A public duty
At first instance, section 15A was treated as imposing a duty owed by police only to the DPP. The Court of Appeal took a broader view.
The Court found that section 15A imposes a public duty because it regulates the exercise of police power and supports the fairness and proper operation of the criminal justice system.This was significant because misfeasance in public office concerns the misuse of public power. The Court accepted that a police officer’s failure to comply with a legal duty governing that power may amount to an unauthorised act. Where the alleged misconduct is an omission, the existence of a legal duty to act is therefore significant.
The investigating officer’s failure to disclose the alternative suspect material amounted to a relevantly unauthorised exercise of public power for the purposes of the tort.
Cannon v Tahche
The Court also considered the Victorian decision of Cannon v Tahche (2002) 5 VR 317.
The State relied on Cannon to argue that the investigating officer’s disclosure obligation was not sufficiently connected to a relevant public power and could not support Mr Tsakirios’ claim. The Court rejected that argument, distinguishing the statutory functions exercised by the investigating police officer from the prosecutorial duties considered in Cannon.
The Court also declined to follow Cannon, and the earlier decision of Tampion v Anderson, to the extent that those decisions suggested the relevant public duty must be owed personally to the plaintiff or to a particular class of people. It was enough that the duty regulated the exercise of public power in the public interest.
Cannon had further suggested that misfeasance might extend to judicial officers acting without jurisdiction and in bad faith. The Court found that this aspect of the decision had been superseded by Queensland v Mr Stradford (a pseudonym) [2025] HCA 3, which confirmed that judicial immunity extends even to invalid and malicious decisions of inferior courts.
Why the plaintiff failed
Although the failure to disclose amounted to an unauthorised exercise of public power, Mr Tsakirios still had to establish malice.
This required proof that the investigating officer intended to cause harm or knew of, or was recklessly indifferent to, both the absence of lawful authority and the likelihood of harm to Mr Tsakirios. The Court was not satisfied that the officer had the necessary state of mind. The appeal was therefore dismissed, and Mr Tsakirios was ordered to pay the State’s costs.
Authors: Britney Aguirre and Jeremy King
How can I learn more?
Jeremy King.
Principal.
- Injury Law & Police Misconduct
- 03 9890 3321
- Email Address: j.king@robinsongill.com.au
Jeremy King is a Principal Lawyer and head of the Police and Prisons team at Robinson Gill. With an imposing track record of high-profile actions against the Victorian police, Jeremy is at the forefront of the fight for police oversight and accountability. Through both his landmark litigation and advocacy work, he has played a key role in shaping legislative reform across Australia.
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