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This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

False Imprisonment


False imprisonment is a common law offence in several states of Australia (Victoria, New South Wales and South Australia). Other states which are code jurisdictions, such as the Northern Territory and Queensland, have an equivalent criminal offence known as deprivation of liberty, which is found in legislation.

False imprisonment is also a tort, (civil wrong). The same set of facts can amount to both the criminal offence and the tort of false imprisonment, meaning that both a criminal prosecution and civil proceedings can result.

False imprisonment consists of ‘the intentional and unlawful restraint of the liberty of another person against that person’s will’ (in the words of Justice Coldrey in the 2006 decision of R v Huynh).

How is false imprisonment proven?

A person can be falsely imprisoned by a private individual or by a public authority, such as the police. Private individuals commonly commit false imprisonment during the course of assaults and kidnappings, domestic violence offences and sexual assault as well as in circumstances where no other offence is being committed. Police can be found to have falsely imprisoned a person if they hold a person in custody without lawful authority or for longer than it is lawful to hold them for. This may occur because of an administrative error, such as getting a person’s bail status or prison release date wrong.

For a person to be falsely imprisoned their freedom must be unlawfully restricted to the point where they cannot move from one place to another. The restraint must be a total and not merely a partial obstruction. There must be no reasonable means of escape available to them. A person unlawfully confined to a motor vehicle is falsely imprisoned if the only escape is jumping out of the moving vehicle.

The person need not be restrained by physical force or a physical barrier. The threat of force is sufficient for the offence or tort to be made out. For example, where an armed robber tells customers to get on the floor, threatening to shoot them if they try to leave, false imprisonment occurs without any physical contact.

For false imprisonment to be proven, the defendant must intend to detain the victim. They need not have any intention to arouse fear of violence. However, the tort of false imprisonment is a tort of strict liability, meaning that although the defendant must intend to detain the victim, they need not intend to do so unlawfully. When a public authority makes an administrative error that results in a person being unlawfully detained, it may be sued for false imprisonment notwithstanding it occurred because of a mistake. Similarly, if a private individual detains a person in a ‘citizen’s arrest’, believing them guilty of a serious offence, they may be sued for false imprisonment if that belief turns out to be incorrect.

What are the defences?

There are several defences available to a charge of false imprisonment.

Voluntary consent

It is a defence to false imprisonment if the victim consented to being confined without being subjected to duress, coercion or fraud. An example of this is where a person boards a commercial aircraft, knowing they will be unable to leave for the duration of the flight.

Police privilege

Police may detain a person if they believe the person has committed a crime. This may occur without a warrant when a serious offence is committed in public view and police become involved.

Shopkeeper’s privilege

A shopkeeper may detain a person for a brief period if they believe they have committed retail theft. This may be for a short period while they ascertain whether an item has been paid for or while the authorities are contacted.

Citizen’s arrest

In some circumstances, where a serious offence has been committed, a private individual may detain another until law enforcement officers arrive in a citizen’s arrest. This may occur when an offender has been ‘on the run’ and their name and photograph have been published in relation to offences.

Reasonable parental discipline

It is lawful for a person to detain their child provided the act falls within the ambit of reasonable parental discipline. For instance, confining a child to their bedroom as a punishment would not be false imprisonment unless it continued for an unreasonable period of time.

Related offences

There are a number of criminal offences related to false imprisonment, which may be laid as alternative or additional charges.

Kidnapping

Kidnapping requires the victim to have been taken away, whereas false imprisonment only requires the victim to be prevented from moving from one place to another.

Assault

An assault may sometimes occur together with an instance of false imprisonment or assault may be an alternative charge for the same act. However, false imprisonment can occur even where there is no assault committed.

Manus Island class action

In 2016, the Papua New Guinea Supreme Court held that the detention of asylum seekers by Australia in the Manus Island Detention Centre was unlawful as the right to personal liberty is entrenched in the constitution of Papua New Guinea.

The following year, the asylum seekers remaining in the centre were transferred to another facility where their freedom of movement was not restricted.

In July 2017, the detainees initiated a class action against both the Australian government and the PNG government seeking compensation for false imprisonment. The case has not yet been decided.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

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