Mensinga v Director of Public Prosecutions

The Court of Appeal of the Australian Capital Territory heard an appeal from an order of the Master striking out a statement of claim. The appellants, Nicole Maree Mensinga and Gail Maree Mensinga, had commenced proceedings alleging negligence and breach of statutory duty against the Director of Public Prosecutions (DPP) and the Commissioner of the Australian Federal Police. Their claim arose from an alleged abduction and rape of the first appellant, with damages sought for emotional distress and post-traumatic stress disorder suffered by both appellants due to the alleged failure to properly investigate and prosecute the perpetrator.

The central legal issues before the Court of Appeal were whether the DPP owed a duty of care to the victims of crime in relation to the exercise of its discretion to prosecute, and whether any statutory duty imposed on the DPP could found a private cause of action against the DPP for breach by victims of crime. The appellants' statement of claim alleged that the DPP had a duty to properly conduct the prosecution and exercise reasonable skill and care, but the particulars of negligence focused on the failure to institute a prosecution and, in some instances, a failure to properly investigate. The appellants also relied on provisions of the *Director of Public Prosecutions Act 1990* and the *Victims of Crime Act 1994* to establish these duties.

The Court reasoned that the statement of claim, as pleaded, did not disclose a reasonable cause of action against the DPP. It noted that the *Director of Public Prosecutions Act 1990* grants the Director the function to institute and conduct prosecutions but does not confer a power to investigate offences, nor does it impose a duty to investigate. The Court found that the alleged failure to institute a prosecution did not, on the facts as pleaded, constitute a breach of any duty owed by the DPP to the appellants. Furthermore, the Court considered section 33A of the *Director of Public Prosecutions Act 1990*, which provides immunity from suit for acts done or omitted in good faith in the exercise of the Director's powers or performance of functions, and observed that while the appellants alluded to potential arguments regarding bad faith, these were not pursued with sufficient particularity or legal foundation. The Court also found that the provisions of the *Victims of Crime Act 1994*, particularly those concerning the sympathetic and informative treatment of victims, did not create a private right of action for negligence against the DPP.

The appeal was dismissed.