When Power Goes Wrong · Evidence & Proof Ledger · Part 33

How do you prove that an official knew they were acting unlawfully—or was reckless about it?

Mental-state elements are usually proved by inference from objective evidence. For misfeasance in public office, the evidence must support the required knowledge or reckless indifference to unlawfulness and to likely harm, not merely carelessness.

There is rarely an email saying “I know this is unlawful and I am doing it anyway”. Knowledge, recklessness and bad faith are therefore often proved circumstantially.

In Whangārei District Council v Daisley [2026] NZSC 72, the Supreme Court restated the accepted Garrett elements of misfeasance: the public officer must knowingly act unlawfully or be recklessly indifferent to the limits of authority, and must also act with malice or knowledge/reckless indifference that the conduct is likely to harm the plaintiff.

Carelessness is not enough for misfeasance.Evidence that proves negligence may still fail to prove the higher mental-state elements of deliberate or recklessly indifferent abuse of public power.

Potential knowledge evidencePrior warnings, legal/policy advice where lawfully available, internal objections, earlier decisions, notices, acknowledgements and repeated conduct after the issue was identified.

Potential recklessness evidenceConscious failure to investigate an obvious legal limit, persistence after contrary information, or deliberate disregard of a known risk—depending on the full context.

Bad-faith cautionDo not infer bad faith merely from error, hostility or a poor outcome.

Element mapKnowledge of unlawfulness and knowledge/recklessness as to likely harm must be separately proved.

The strongest mental-state case is usually a chronology showing what the decision-maker knew at each point and what they did after receiving that knowledge.

Current Supreme Court authorityWhangārei District Council v Daisley [2026] NZSC 72.

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