The concepts of false imprisonment and unlawful confinement protect individuals from intentional and unlawful restrictions on their freedom of movement and personal liberty. These offences exist both in the common law and are codified in some state/territory legislation. Intentionally depriving a person of freedom of movement, without a legal justification, is both a criminal offence and an intentional tort in civil law.
As established by R v Vollmer & Ors [1996] VSCA 1 VR 95, false imprisonment is ‘constituted by the intentional and unlawful restraint of the liberty of another person against that person’s will.’ In the Australian Capital Territory unlawful confinement is used as a synonym for false imprisonment.
As set out in the Supreme Court of Victoria in The Queen v Huynh [2006] VSCA 213, the following criteria must be satisfied (although the elements are not precisely the same from state to state) for someone to have been falsely imprisoned or unlawfully confined:
- The perpetrator has restricted the victim’s personal liberty; and
- The perpetrator intended to restrict the victim’s personal liberty; and
- The perpetrator possessed ‘no lawful excuse’ for doing so; and
- The victim did not consent to this behaviour
What is a ‘lawful excuse’?
Charges/complaints regarding such offences frequently stem from arrests. Under Section 99 of the Law Enforcement (Powers and Responsibilities) Act (LEPRA) (NSW), officers may only arrest suspects without a warrant under strict circumstances.
Under certain circumstances, a citizen’s arrest may serve as a lawful excuse. No entity other than a police officer may lawfully engage in such behaviour, except during a citizen’s arrest.
Both police and private individuals are capable of restricting a person’s freedom of movement. As such, the circumstances under which an offence may occur are diverse. They may range from preventing someone from leaving a vehicle, to apprehending a suspect despite knowledge of their innocence.
What penalties do these offences carry?
Criminal law
These offences (though worded differently across jurisdictions) are punishable by imprisonment in most states and territories.
- ACT
- Maximum sentence of 10 years’ imprisonment (Section 34 of the Crimes Act 1900)
- Western Australia
- Maximum sentence of 10 years’ imprisonment for unlawful detention (Section 333 of the Criminal Code Act Compilation Act 1913)
- Maximum sentence of 3 years’ imprisonment for ‘procur[ing] any person…to be apprehended or detained…upon insufficient or unreasonable grounds’ (Section 336 of the Criminal Code Act Compilation Act 1913)
In NSW, Victoria and South Australia, false imprisonment is not a codified offence but rather an offence arising from common law.
Intentional tort
False imprisonment can also be an intentional torts under common law. Someone found in a civil case to have engaged in such behaviour may be liable for compensatory and/or exemplary damages.
- Compensatory Damages:
- As with any civil case, a victim may be eligible for compensatory damages for any actual loss sustained by them (for instance, if an unlawful confinement resulted in wage loss)
- Exemplary Damages:
- Designed to deter further such offences against personal liberties. These may accompany compensatory damages.
Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney (02 9696 1361), Canberra (02 5104 9640) and Perth (08 6255 6909) to make an appointment to speak to one of our lawyers.
