False Imprisonment or Wrongful Detention


Wrongful detention or false imprisonment is a violation of customary law in Victoria, New South Wales and South Australia. Jurisdictions such as the Northern Territory and Queensland have crimes equivalent to deprivation of liberty found in legislation.

Wrongful detention is also tort (civil wrong). The same fact can constitute both a criminal offense and an illegal detention sentence, and both criminal prosecution and civil proceedings can be initiated.

Imprisonment is “deliberately and unlawfully restricting the freedom of another person.” (Coldrey AJA in R vs Huynh (2006) 165 A Crim R 586)


What must be proved?

A person may be unjustly detained by an individual or an authority. Individuals often serve wrongful sentences in the context of assault, kidnapping, domestic violence, sexual assault, and in the absence of other crimes. Police may be found to have unjustly detained a person if they held them without legal authority or for longer than the law would allow. This is usually caused by an administrative error. If an individual’s bail status or date of release is provided in error.


For a person to be unjustly imprisoned, their freedom must be unlawfully restricted so that they cannot move from one place to another. Restraints must completely, but not partially, interfere with an individual’s freedom of movement. There should be no rational escape route. A person who is illegally detained in a motor vehicle is unjustly trapped in a place with no escape except by jumping out of the moving vehicle.


People need not be restrained by physical force or physical barriers. A threat of violence is sufficient to establish a criminal offense or tort. For example, if an armed robber asks a customer to sit on the floor and threatens to shoot them if they try to leave the house, false detention occurs without physical contact.


To prove false detention, the defendant must intend to detain the victim. It need not be intended to instill fear of violence. However, illegal detention is a tort with strict liability. This means that the defendant must have intent to detain the victim, but need not intend to do so unlawfully. If an agency commits an administrative error and someone is unlawfully detained as a result, it can be sued for wrongful detention despite the error. Similarly, a private person who holds someone in “civil custody” because he believes he has committed a serious crime could be sued for false custody if that assumption turns out to be false.


What are the defences?

Voluntary consent

Defense against false detention where the victim consents to detention without coercion, coercion or deception. An example of this is boarding a passenger aircraft knowing that you will be restrained during the flight and will not be able to disembark.


Police privilege

Police can arrest a person if they suspect a crime has been committed. This is the case when a serious crime is committed in public and the police are called without a warrant issued.


Shopkeeper’s privilege

Store owners may detain a person for a short period of time if they believe they have committed retail theft. This may be a short period of time while we determine if the item has been paid for or contact authorities.


Citizen’s arrest

In certain circumstances, if a serious crime has been committed, another person may be arrested until law enforcement arrives, known as civil arrest. This can happen when a criminal is “on the run” and their name and photo are published in connection with the crime.


Reasonable parental discipline

It is legal for a person to restrain a child if it falls within the bounds of good parental discipline. For example, locking a child in a bedroom as punishment is not wrong confinement unless the confinement lasts an unreasonably long period.


Related offences


Kidnapping requires the victim to be taken away, but false detention only requires the victim to be prevented from moving from place to place.


In certain circumstances, assault may occur in conjunction with wrongful imprisonment or may be charged with another charge of the same crime. However, wrongful imprisonment can occur without assault.


Manus Island class action

In 2016, the Supreme Court of Papua New Guinea ruled that detention of asylum seekers in detention centers on Manus Island was illegal. Because the right to individual liberty is enshrined in the PNG Constitution. There is no such right in the Australian Constitution. The following year, asylum seekers remaining in Manus Island Detention Center were transferred to another facility where freedom of movement was not restricted.


In July 2017, a detainee filed a class action lawsuit against both the Australian government and her PNG government, seeking compensation for her wrongful detention. The case has not yet been decided.


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