fbpx

What is False imprisonment?

What is false imprisonment

False imprisonment is a tort, that is, a civil wrong. False imprisonment occurs when someone intentionally or unlawfully restricts the freedom of movement of another. To obtain damages for false imprisonment, a person must be confined to a substantial degree, with their freedom of movement totally restrained. If you have been sued for false imprisonment, you should speak to a criminal defence lawyer.

False imprisonment definition

There is no definitive definition of false imprisonment. However, it is the intentional and unlawful restraint of the liberty of another person against that person’s will. An illegal or false arrest of a person could amount to false imprisonment.


Some further guidance on the false imprisonment definition can be found in case law. In R v Garrett (1988), it was that “false imprisonment is not only the unlawful restraint of liberty of another against their will but also the restraint need not be by a physical barrier or actual physical force.”

What are the defences to false imprisonment?

There are several defences available. They are;


Voluntary Consent


Voluntary consent to confinement is often a defence to false imprisonment. A person who consents to confinement without duress, coercion, or fraud may not later claim false imprisonment. Therefore,


Police Privilege


Police officers have the right to detain someone if they have probable cause. For probable cause they have to believe that the other person has engaged in wrongdoing or when they believe a crime has been committed.


Shopkeeper’s Privilege


Almost all states have laws protecting shopkeepers from false imprisonment claims. These laws typically allow them to detain retail customers for a brief period of time when they have reasonable grounds to believe that the person has committed a crime. In many instances, a shopkeeper is limited to detaining a person to request or verify ID, make a reasonable inquiry into whether the person has purchased the merchandise, and/or to hold the person in custody until a peace officer arrives.

In determining liability, a court will look at whether the store’s actions under the circumstances were reasonable. A guilty shoplifter can still sue for false imprisonment then if the detention was unreasonable.


Citizen’s Arrest


In some instances, a person who is not a law enforcement official can make a “citizen’s arrest” by calling for a peace officer when a crime is committed or attempted in their presence, although this defence is not meant to give citizens the right to take the place of law enforcement.

False imprisonment cases Australia

There are numerous both reported and unreported cases of false imprisonment throughout Australia. Examples of these cases are;

 

  • Whitbread v Rail Corporation of NSW [2011] NSWCA 130;
  • Darcy v State of NSW [2011] NSWCA 413;
  • State of SA v Lampard-Trevorrow (2010) 106 SASR 331;
  • State of NSW v TD (2013) 83 NSWLR 566; and.
  • Whitbread v Rail Corporation of NSW [2011] NSWCA 130.

In the case of State of NSW v Zreika, the plaintiff succeeded in assault, wrongful arrest and malicious imprisonment case against the NSW police. There had been a shooting at a home unit in Parramatta. The plaintiff, Zreika was reported as having made some bizarre remarks at a nearby service station. As a result, the police arrested and charged. However, a description of the shooter and his vehicle could not and did not match the plaintiff. After the arrest, police learned the plaintiff had a credible alibi and that a witness had taken part in a “photo array” but had not identified the Zrekia. Despite all this, Zreika was refused bail and remained in jail for almost two months before the case was withdrawn against Zreika.

 

If you have been a victim of false imprisonment, you may be entitled to compensation. However, you must bring the case against the person or organisation within six years of the incident occurring.

Criminal offence for false imprisonment NSW

There are criminal charges for false imprisonment, depending on the facts. For example, kidnapping under Section 86, Crimes Act 1900. This is a serious offence and the maximum penalty of 14 years imprisonment. To establish the offence, the prosecution must prove beyond reasonable doubt that you:


  • Took or detained a person,
  • Did so without the other person’s consent,
  • Did so with the intention of holding the person for a ransom, or committing a serious indictable offence, or obtaining any other advantage.

Author

  • Mohammad Khan | Criminal Defence Lawyer

    Mohammad Khan is the Principal Solicitor of Lyons Law Group. After graduating with a Bachelor of Aviation from the University of New South Wales, Mohammad took a keen interest in the law. He began training in criminal law under the tutelage of Australia’s leading criminal lawyer Adam Houda and studied law at the University of Sydney.