Have you been charged with False Imprisonment?
If you have been charged with false imprisonment, you need to consult a specialist criminal lawyer, before appearing in Court.
As a common law offence, false imprisonment is not contained in the legislation. It is nonetheless a very serious offence – the maximum penalty is 10 years in prison.
What is False Imprisonment?
The charge of false imprisonment in Victoria is defined in the common law as the intentional deprivation of an 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 no lawful excuse for the conduct exists.
Before deciding whether to plead guilty or not guilty to false imprisonment charges, some questions need to be carefully considered by you and your lawyer.
- Does the prosecution have a case?
- Did you restrain someone against their will?
- Did you have any valid reason for doing this?
- Did you act alone?
- Is there a defence?
Read on for further information about False Imprisonment.
Elements of the offence
False imprisonment is a common law offence. To be convicted of the offence, the prosecution must prove the following elements beyond reasonable doubt:
- The accused deprived another person of their liberty;
- The accused intended to deprive the person of their liberty; and
- The deprivation of liberty was unlawful (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 sufficient satisfy this element (Bird v Jones (1845) 7 QB 742). Examples of circumstances that constitute a deprivation of liberty include physical restraint, by 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).
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 (2007) 20 VR 250; Paton v R [2011] VSCA 72). In addition, where a person consents to the imprisonment, it will not be unlawful (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 has a defence (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). 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 the imprisonment, it is not unlawful imprisonment (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 (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).
False imprisonment cases
Case summary:
- The defendant, Mr Huynh, was charged with one count of false imprisonment, contrary to the Crimes Act 1958, s.568(1).
- The incident 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.
- The applicant’s counsel requested a Prasad invitation, which the jury responded to by indicating they wished the case to proceed on the two remaining counts.
Grounds for appeal:
- The conviction is unsafe and unsatisfactory.
- A miscarriage of justice was occasioned by the admission of complaint evidence on count 3 [false imprisonment] and by the direction of the learned trial judge as to the complaint.
- 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.
- 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.
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.
McFadzean v CFMEU (2007) 20 VR 250
Case summary:
- The case arose from an anti-logging demonstration and a pro-logging picket in the Otway Ranges between 25 January 1999 and 29 January 1999.
- The appellants, environmentalists, were partaking in the demonstration and claimed they were subjected to false imprisonment by the respondents, logging contractors.
- The appellants also claimed they were subjected to public nuisance, assault, and other forms of harassment, causing some of them to suffer from post-traumatic stress disorder (PTSD) and other injuries.
Grounds for appeal:
The appellants appealed on several grounds, including that:
- the judge erred in finding that they had not been falsely imprisoned;
- the judge was wrong in fact in finding that there was a ‘police gate’ or a ‘bush gate’ which was a reasonable means of egress; and
- that the judge erred in law or in the exercise of discretion in refusing to award exemplary damages and costs.
Decision:
The Court of Appeal considered the claims of false imprisonment, public nuisance, and the issues of exemplary damages and costs. The court found that the appellants’ claims in public nuisance were bound to fail based on the facts. The court also rejected the appellants’ argument for general damages for delay and loss of amenity. The court ruled that the appellants’ claims for damages for public nuisance were rightly refused by the judge.
The court did not find any error in the judge’s decision not to award exemplary damages in respect of the tortious conduct found in respect of the appellants. The court found that the judge had correctly set out the principles guiding his assessment of the appropriateness of an award of exemplary damages. The court also upheld the judge’s costs orders. The appellants had been ordered to pay 40% of the respondent’s costs, and individual liability for those costs was apportioned between the appellants.
The court found that the judge’s reasons for departing from the normal course of awarding costs to a successful plaintiff were sound. The court also found that the judge’s approach to the apportionment of costs was particularly apposite in this case, given the multiplicity of parties, actions, and issues, and the mixed success enjoyed by the plaintiffs. The court dismissed the appeal.
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 usually 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%, or 232 of 253 charges). Of those imprisonment sentences, the shortest was less than a month and the longest was 8 years. The median was 1.5 years, meaning half of the prison sentences were below 1.5 years, and half were above.
- 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%, or 73 of 119 charges).
Where will my case be heard?
False Imprisonment cases will now often be heard in the Magistrates’ Court of Victoria or the County Court depending upon the seriousness of the alleged offending. Previously this charge could only be heard in the superior courts.
Why you need a false imprisonment lawyer
If you face charges of false imprisonment, it is imperative to consult with an experienced criminal lawyer immediately. False imprisonment is a complex charge that requires a nuanced understanding of the law. What many lawyers do not understand is that this is quite a hard charge for the prosecution to establish. Our firm has a strong track record of successfully defending clients against these charges, often highlighting the prosecution’s challenges in proving their case.
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 defense applies if the act of imprisonment was intended to prevent a greater harm, for instance, stopping someone from entering a hazardous situation.
Each defence requires thorough evidence and strategic legal argumentation to be deemed valid. Our skilled lawyers are adept at navigating these complexities and will work diligently to build a robust defence for you.
Should you consider pleading guilty to false imprisonment, discussing your case with a lawyer is crucial. There are significant strategies that could reduce your sentence or mitigate other legal repercussions. Preparation is key—do not delay. Starting early maximises the opportunity to effectively manage and present your case.
How we can assist
Charged with false imprisonment? Let us help. Contact our office today to schedule a consultation with one of our seasoned criminal defence lawyers. We are committed to providing robust legal representation and ensuring the best possible outcome for your case.
