False imprisonment Victoria

If you are facing false imprisonment charges in Victoria, consulting an experienced criminal lawyer is essential. False imprisonment is a complex charge that demands a detailed understanding of the law, and it can be challenging for the prosecution to prove. Our firm has a strong record of successfully defending clients in these cases, often by underscoring the difficulties the prosecution faces in meeting the burden of proof.

There are several defences that may be available to you, including:

  • Lawful Authority: You may have acted under legal justification, such as a police officer conducting a lawful arrest.
  • Consent: The alleged victim may have willingly agreed to the restriction of their movement, fully understanding the implications.
  • Necessity: This defence applies if the act of imprisonment was intended to prevent greater harm, for instance, stopping someone from entering a hazardous situation.

A defence requires persuasive evidence and strategic legal arguments to succeed. Our skilled lawyers are experienced at navigating these complexities and will work diligently to build a robust defence for you. Preparation is key—do not delay. Starting early maximises the opportunity to manage and present your case effectively.

Read on for further information about the offence of false imprisonment.

False imprisonment Victoria

What is False Imprisonment?

The charge of false imprisonment in Victoria is defined in the common law as the intentional deprivation of another person’s liberty by way of physical force, threats or coercion in circumstances where the other person is not consenting and has no reasonable means of escape, and that there is no lawful excuse for the conduct. In Victoria, false imprisonment is liable to a maximum penalty of 10 years imprisonment under section 320 of the Crimes Act 1958.

Elements of false imprisonment

False imprisonment is a common law offence. To be convicted of the offence, the prosecution must prove the following elements beyond a reasonable doubt:

  • The accused compelled another person to remain in a particular place;
  • the restraint was deliberate;
  • the accused intended to prevent the other person from leaving that place;
  • the accused had no lawful excuse for doing so (Macpherson v Brown (1975) 12 SASR 184; R v Vollmer [1996] 1 VR 95; R v Huynh [2006] VSCA 213; R v Busuttil [2006] SASC 47).

Deprivation of liberty

To prove the first element, the prosecution is required to prove that the accused deprived a person of their freedom to move from one place to another (R v Huynh [2006] VSCA 213; R v Rahman (1985) 81 Cr App R 349).

The complainant’s liberty must have been totally obstructed, and a mere interference with convenience does not sufficiently satisfy this element (Bird v Jones (1845) 7 QB 742). Examples of circumstances that constitute a deprivation of liberty include physical restraint, intimidating conduct and threats of harm to the victim or another person (Homsi v R [2011] NSWCCA 164; McFadzean v CFMEU (2007) 20 VR 250; R v Garrett (1988) 50 SASR 392; Myer Stores Pty Ltd v Soo [1991] 2 VR 597). False imprisonment may involve an assault; however, the offence can also be committed by merely detaining someone, such as by locking them in a room.

There is no deprivation of liberty if the complainant agrees to go to or remain in a place nominated by the accused (for example, see the McFadzean v CFMEU case summary below). To prove that the deprivation of liberty was against the complainant’s will, the prosecution must prove that the accused’s conduct was coercive and that the complainant’s will was overborne (McFadzean v CFMEU; Paton v R [2011] VSCA 72). In addition, where a person consents to the imprisonment, it will not be unlawful imprisonment (R v Vollmer [1996] 1 VR 95).

Intention to deprive

The second element that the prosecution must establish is that the accused intended to deprive the complainant of their liberty (Macpherson v Brown (1975) 12 SASR 184).

For this element to be made out, there is no need for the accused to have intended to injure the complainant in any way (R v Vollmer [1996] 1 VR 95; JCS v R [2006] NSWCCA 221), and it is not necessary the accused intended to arose fear in the complainant (Macpherson v Brown (1975) 12 SASR 184).

If the accused was under a mistaken belief that the complainant consented to the deprivation of liberty, the accused will not have intended to deprive the complainant of liberty, and will have a defence available (R v Faraj [2007] 2 Cr App R 25).

Unlawfulness

The third element the prosecution must prove is that the deprivation of liberty was unlawful (R v Vollmer [1996] 1 VR 95; R v Huynh [2006] VSCA 213). That is, it was unlawful imprisonment. Pursuant to case law, it is unlawful to deprive a person of his or her liberty unless the deprivation is authorised, such as by a court order, statutory authority or common law. Therefore, where a person consents to imprisonment, it is not unlawful (R v Vollmer [1996] 1 VR 95). 

If, for example, a police officer arrests, imprisons or otherwise detains someone in circumstances where they had no lawful authority to do so, they may have committed unlawful imprisonment (or unlawful detainment) (McIntosh v Webster (1980) 30 ACTR 19; R v Banner [1970] VR 240; Myer Stores Pty Ltd v Soo [1991] 2 VR 597; R v Faraj [2007] 2 Cr App R 25).

Parents are permitted to lawfully detain their children for the purposes of discipline, however, if the detention exceeds the bounds of reasonable parental discipline, the detention may be rendered unlawful (R v Rahman (1985) 81 Cr App R 349; JCS v R [2006] NSWCCA 221).

Unlawful imprisonment

In Victoria, false imprisonment is an offence that involves unlawfully restraining or detaining another person against their will, without lawful excuse. This term is also referred to as “unlawful imprisonment” in several states in the USA, but the concepts are largely similar. Both terms describe the wrongful deprivation of a person’s freedom of movement, although the exact legal definitions and requirements can vary between jurisdictions.

False imprisonment Crimes Act

False imprisonment is addressed under common law rather than within the Crimes Act 1958 (Vic), although the penalty for the offence is found in section 320 of the Crimes Act 1958. This means that false imprisonment is classified as a common law offence, shaped by court precedents rather than statutory provisions. While the Crimes Act includes various offences related to personal liberty, such as kidnapping and assault, false imprisonment remains governed by case law in Victoria.

It is also essential to distinguish between the tort of false imprisonment and the criminal offence of false imprisonment at common law. The tort law enables a victim to pursue civil remedies, seeking compensation for their loss of freedom, whereas the state prosecutes the criminal offence to penalise and deter unlawful conduct. While the tort centres on restoring the victim’s personal rights, the criminal offence is concerned with holding the offender accountable to society for infringing on individual liberty.

False imprisonment cases

Numerous false imprisonment cases have clarified that even a short period of restraint or non-physical methods of restriction—such as blocking exits—can be enough to constitute false imprisonment if the person’s freedom of movement is restricted involuntarily.

For example, see the following false imprisonment cases:

R v Huynh [2006] VSCA 213

Case summary:

  • The defendant, Mr Huynh, was charged with one count of false imprisonment, contrary to the Crimes Act 1958 s568(1) for an incident that took place on 30 December 2004.
  • The complainant, a 10-year-old girl, alleged that Huynh had forced her into his car, activated a child lock to prevent her from leaving, and touched her inappropriately.
  • Huynh was acquitted of one count of indecent assault, one count of abduction to take part in an act of sexual penetration, one count of abduction of a child under the age of 16 years with intent to take part in an act of sexual penetration, and one count of taking part in an act of sexual penetration with a child under the age of 16 years.
  • Huynh was, however, convicted of one count of false imprisonment.

Procedural history:

  • The applicant challenged the conviction for false imprisonment on the basis that it was unsafe and unsatisfactory.
  • During the trial, the applicant’s counsel sought a Prasad invitation, allowing the jury to consider an early acquittal. However, the jury indicated a desire to proceed with deliberations on the two remaining counts. Notably, the Prasad direction—now abolished—was a procedural option in criminal trials, where a judge could advise the jury that they could acquit the accused at any point following the close of the prosecution’s case if they found the evidence insufficient to support a conviction.

Grounds for appeal: 

  1. The conviction is unsafe and unsatisfactory.
  2. A miscarriage of justice was occasioned by the admission of complaint evidence on false imprisonment and by the direction of the learned trial judge as to the complaint.
  3. A miscarriage of justice was occasioned by the learned trial judge failing to direct as to the consequences of a rejection of the motive to lie put forward by the accused and failing to give a Palmer direction.
  4. The learned trial judge erred in failing to direct as to consent and withdrawal of consent in relation to false imprisonment.

Decision:

The judges rejected all grounds for appeal. They found that the standard direction on the elements of false imprisonment was sufficient in this case. They also concluded that there was neither a wrong decision of a question of law nor a miscarriage of justice regarding the admission of complaint evidence on the count of false imprisonment. The judges also found no error in the trial judge’s failure to direct as to the consequences of a rejection of the motive to lie put forward by the accused, the failure to give a Palmer direction, or the failure to direct as to consent and withdrawal of consent in relation to false imprisonment. As a result, the application for leave to appeal against conviction was refused.

R v Busuttil [2006] SASC 47

Case summary:

  • The defendant, Mr Busuttil, was charged with wounding with intent to do grievous bodily harm contrary to s 21 of the Criminal Law Consolidation Act 1935 (SA) and the common law offence of false imprisonment.
  • The particulars of the charges were that the defendant unlawfully and maliciously wounded the victim, Mr Gregg, with intent to do him grievous bodily harm, and unlawfully imprisoned Gregg and detained him against his will.
  • The prosecution alleged that on 30 March 2003, the defendant stabbed Gregg multiple times. 
  • The defendant was identified by the victim in a police line-up and in a holding cell at the Adelaide Magistrates Court.
  • The defendant denied all knowledge of the events and pleaded not guilty to both charges.

Submissions:

The prosecution argued that the defendant was the person who stabbed and falsely imprisoned Gregg. They presented evidence from the victim, two police officers, and statements from other witnesses. The victim identified the defendant in a police line-up and in a holding cell at the Magistrates Court.

The defence argued that the defendant was not the person who committed the crimes. They presented evidence from the defendant’s sister and a witness who was present at the scene of the crime. The defence highlighted inconsistencies in the victim’s testimony and pointed out that the victim was under the influence of drugs and alcohol at the time of the incident.

Decision:

Justice Anderson found that the essential elements of the offences had been made out beyond reasonable doubt apart from the issue of identity. The judge noted inconsistencies in the victim’s testimony, the possibility of another person known as Shannon being present at the scene, and the fact that the victim was under the influence of drugs and alcohol at the time of the incident. The judge also noted that the victim was certain that the attacker was right-handed, while the defendant was left-handed. Given these factors, the judge concluded that it had not been proven beyond reasonable doubt that it was the defendant who stabbed and falsely imprisoned Mr Gregg. The verdict was not guilty on both counts.

DPP v Fernandez (2003) 137 A Crim R 524

Case summary:

  • The respondents, Jimmy Fernandez and Mauricio Fernandez, were sentenced in the County Court on 31 January 2002 for multiple offences including aggravated burglary, armed robbery, false imprisonment, and theft committed in one extended episode on 24 February 2001, with the exception of the theft of a car which occurred earlier.
  • The respondents, along with a co-offender, Matthew Chircop, pleaded guilty to these charges on 23 January 2002.
  • The respondents and Chircop were arrested on 10 May 2001.
  • The respondents gave undertakings to assist in the prosecution of a fourth man, referred to as G, which influenced the sentencing judge to impose lesser sentences.
  • The respondents failed to fulfil their undertakings, leading to the withdrawal of proceedings against G.
  • Mauricio Fernandez has since given evidence at the committal of a man charged with murder. Jimmy Fernandez was assaulted in prison, requiring sixteen stitches and leaving him with a scar on his neck.

Procedural history:

  1. On 14 February 2002, each of the respondents filed notice of application for leave to appeal against sentence.
  2. On 15 July 2002, the Director of Public Prosecutions filed notice of appeal, claiming that the sentence imposed was of less severity due to an undertaking given by the respondents to assist the authorities in investigating and prosecuting an offence, and the respondents had failed to fulfil the undertaking.

Grounds for appeal:

  1. The sentence imposed was of less severity due to an undertaking given by the respondents to assist the authorities in investigating and prosecuting an offence, and the respondents had failed to fulfil the undertaking.

Decision:

  • The court accepted that the sentences imposed fell to be quashed under the Crimes Act 1958 s567A(4A), and the sentencing discretion was re-opened.
  • The court considered the circumstances of the offending, the respondents’ personal circumstances, and the subsequent events, including an assault committed on Jimmy Fernandez by another prisoner and Mauricio Fernandez’s assistance to police with their inquiries into certain unrelated events.
  • The court agreed with the Director’s submission that the offences committed by the respondents were serious and warranted custodial sentences in an adult prison.
  • The court found it difficult to distinguish between the respondents and a third offender, Chircop, in terms of their circumstances and the nature of their offences.
  • The court imposed the same sentences on the respondents as were imposed on Chircop, after reducing the sentences on two counts by four months. The total effective sentence was 5 years’ imprisonment with a non-parole period of 3 years and 3 months.
  • The court refused the application for an Appeal Costs Act certificate and confirmed the orders made in the court on disqualification from driving.

False imprisonment penalties

The maximum penalty for false imprisonment is 10 years imprisonment. Although the charge itself is not contained in the legislation, the maximum penalty is found in section 320 of the Crimes Act 1958.

Sentencing False Imprisonment

The sentencing statistics for the Magistrates’ Court, County Court and Supreme Court of Victoria collected by Court Services Victoria provide useful statistics for understanding how a specific crime is sentenced.

Sentencing Advisory Council statistics for the charge of false imprisonment:

  • In the higher courts, in the five years to June 2023, the most common sentence imposed for the offence was imprisonment (91% of charges). Of those imprisonment sentences, the shortest was less than a month and the longest was 8 years.
  • In the Magistrates’ Court, in the three years to June 2023, 119 charges of false imprisonment were sentenced. The most common sentence for this offence was imprisonment (61.3% of 119 charges).

Where a false imprisonment charge is heard

False imprisonment is an indictable offence that may be heard and determined summarily (Criminal Procedure Act 2009 s28). Therefore, with the consent of the accused, false imprisonment charges can be heard in the Magistrates’ Court of Victoria. Previously this charge could only be heard in the superior courts.

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