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7.4.17 - False Imprisonment

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Elements

  1. False imprisonment is a common law offence. It has the following three elements:
    1. The accused deprived another person of his or her liberty;
    2. The accused intended to deprive the person of his or her liberty; and
    3. 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).
  2. There is no need to prove that the imprisonment was imposed “injuriously”, or that the accused intended to injure the complainant in any way (R v Vollmer [1996] 1 VR 95; JCS v R [2006] NSWCCA 221).

    Deprivation of Liberty

  3. The first element the prosecution must prove is that the accused deprived another person of his or her liberty (R v Vollmer [1996] 1 VR 95; R v Huynh [2006] VSCA 213; Macpherson v Brown (1975) 12 SASR 184; R v Busuttil [2006] SASC 47).
  4. This requires proof that the accused deprived a person of his or her freedom to move from one place to another (R v Huynh [2006] VSCA 213; R v Rahman (1985) 81 Cr App R 349).
  5. As the offence is concerned with the deprivation of liberty, and not a mere interference with convenience, the complainant’s liberty must have been totally obstructed. A partial obstruction is not sufficient (Bird v Jones (1845) 7 QB 742; R v Garrett (1988) 50 SASR 392; McFadzean v CFMEU (2007) 20 VR 250; Symes v Mahon (1922) SASR 447).
  6. It is a question of fact for the jury whether the accused’s conduct has deprived the complainant of his or her liberty. The complainant’s personal characteristics (such as age, ethnic origin, knowledge of English, intellectual qualities and physical or mental disabilities) may be relevant to the jury’s assessment (R v Awang [2004] 2 Qd R 672).
  7. A person’s liberty may be restrained in various ways, including by physical restraint, by threats of harm to the complainant or another, or by other intimidating conduct (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).
  8. A person may be deprived of their liberty by fraud (Davis v R [2006] NSWCCA 392; Go v R (1990) 73 NTR 1).
  9. However, there is no deprivation of liberty where an accused induces another person by fraudulent misrepresentation to go unaccompanied from one place to another (R v Hendy-Freegard [2008] QB 57).

    “Against the complainant’s will”

  10. In most cases the prosecution must prove that the deprivation of liberty was against the complainant’s will. There is no deprivation of liberty if the complainant, of his or her own free will, agrees to go to or remain in a place nominated by the accused (McFadzean v CFMEU (2007) 20 VR 250. See also Myer Stores Pty Ltd v Soo [1991] 2 VR 597; R v Garrett (1988) 50 SASR 392).
  11. It is unclear whether the deprivation of liberty must always be against the complainant’s will. While some cases have held that it must be (e.g., R v Bournewood Community and Mental Health NHS Trust; Ex parte L [1999] 1 AC 458), others have held that is not the case (see, e.g., JCS v The Queen [2006] NSWCCA 221). See McFadzean v CFMEU (2007) 20 VR 250 for a discussion of this issue.
  12. To prove that the deprivation of liberty was against the complainant’s will, the prosecution must prove:
  13. Thus, even if the accused has blocked the complainant’s ability to leave a location, this element will not be met if the complainant remains at that location for his or her own reasons, uninfluenced by the accused’s actions (McFadzean v CFMEU (2007) 20 VR 250).
  14. A complainant may, in the course of an extended detention, change his or her mind and consent to the detention. From that point in time the accused is no longer depriving the complainant of his or her liberty (R v Nguyen & Tran [1998] 4 VR 394).
  15. In addition, where a person consents to the imprisonment, it will not be unlawful (R v Vollmer [1996] 1 VR 95). See Unlawfulness (below).
  16. If the complainant was incapable of consenting to the deprivation of liberty (e.g., a young child), a jury will readily infer that the complainant did not consent (R v D [1984] AC 778).

    Knowledge of the deprivation

  17. It is unclear whether the complainant must know that his or her means of leaving a place have been blocked. While some cases have suggested that false imprisonment may occur without the complainant’s knowledge (see, e.g., JCS v The Queen [2006] NSWCCA 221; R v Awang [2004] 2 Qd R 672; Go v R (1990) 73 NTR 1), others have held that the complainant must be aware of the imprisonment (see, e.g., R v Bournewood Community and Mental Health NHS Trust; Ex parte L [1999] 1 AC 458. See also McFadzean v CFMEU (2007) 20 VR 250).

    Conditional deprivation

  18. An issue concerning this element may arise where:
  19. In such circumstances, the complainant has not been deprived of his or her liberty simply because he or she has been detained. There will only be a deprivation of liberty if the complainant did not consent to being detained in such circumstances (The Balmain New Ferry Co v Robertson (1906) 4 CLR 379).
  20. To determine if the complainant consented to the deprivation, the jury must examine the terms of the relevant arrangement (The Balmain New Ferry Co v Robertson (1906) 4 CLR 379).
  21. There will be a deprivation of liberty if the accused does not seek to give effect to the purpose for which the arrangement was entered into, and does not give the complainant a reasonable opportunity to leave (R v Huynh [2006] VSCA 213).

    Means of escape

  22. There is no deprivation of liberty if the complainant had a reasonable means of escape available (McFadzean v CFMEU (2007) 20 VR 250).
  23. Where there was a reasonable means of escape, it does not matter that the complainant did not make use of it. Its existence is sufficient to negate this element (McFadzean v CFMEU (2007) 20 VR 250).
  24. The issue is not whether it would have been reasonable for any person to escape. The court must consider a proposed means of escape was reasonable for the complainant. This may depend on factors such as the physical or mental condition of the complainant (McFadzean v CFMEU (2007) 20 VR 250).
  25. The following factors are also relevant to assessing the reasonableness of a means of escape:
  26. The fact that a means of escape is inconvenient does not make it unreasonable. For example, it has been held to be reasonable for a complainant to have to swim from Circular Quay to the shore, or to journey through the bush for two hours (McFadzean v CFMEU (2007) 20 VR 250; Balmain New Ferry Co v Robertson (1906) 4 CLR 379).
  27. A means of escape may be reasonable even if it requires the complainant to commit a minor trespass (McFadzean v CFMEU (2007) 20 VR 250; Wright v Wilson (1699) 91 ER 1394).
  28. The fact that the complainant could have sought assistance from police to escape does not mean that they had a reasonable means of escape (McFadzean v CFMEU (2007) 20 VR 250).
  29. Where is person is deprived of his or her liberty by threats, the availability of a means of physical escape which the complainant chooses not to use does not imply consent to the imprisonment (R v Garrett (1988) 50 SASR 392; McFadzean v CFMEU (2007) 20 VR 250)
  30. Where there is a reasonable means of escape, and the complainant hesitates before using it, there is no false imprisonment during the period of hesitation. By contrast, where there is a means of escape which is not reasonable, and the complainant hesitates before using it, there is false imprisonment during the period of hesitation (McFadzean v CFMEU (2007) 20 VR 250).

    Avoid using the word “compel”

  31. As “compelling” a person to remain in a particular place or go to a particular place does not necessarily involve restraint on a person’s freedom of movement, judges should avoid using the term “compel” in their directions (R v Huynh [2006] VSCA 213).

    Intention

  32. The second element the prosecution must prove is that the accused intended to deprive the complainant of his or her liberty (Macpherson v Brown (1975) 12 SASR 184; R v Garrett (1988) 50 SASR 392; R v Busuttil [2006] SASC 47; Paton v R [2011] VSCA 72).
  33. There is no need to prove that the accused intended to arouse fear of violence, or foresaw that the complainant may fear violence (Macpherson v Brown (1975) 12 SASR 184; R v Vollmer [1996] 1 VR 95).
  34. This element will not be met if the accused mistakenly believed that the complainant consented to the deprivation of liberty (R v Faraj [2007] 2 Cr App R 25; Defina v R, VSC, 3/3/1993; R v Vollmer [1996] 1 VR 95).
  35. It is not necessary to show that the asserted belief was reasonable. The reasonableness of the belief is relevant only to whether the accused held the belief (R v Faraj [2007] 2 Cr App R 25).
  36. The judge must determine whether there is an evidentiary basis for a claim of mistaken belief before leaving this issue for the jury (Defina v R, VSC, 3/3/1993; R v Vollmer [1996] 1 VR 95; R v Faraj [2007] 2 Cr App R 25).

    Unlawfulness

  37. 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).
  38. It is unlawful to deprive a person of his or her liberty unless the deprivation is authorised (e.g., by a court order, the common law or statutory authority) (R v Vollmer [1996] 1 VR 95).
  39. This element will be met if a police officer arrests, imprisons or otherwise detains someone in circumstances where they had no lawful authority to do so (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).
  40. Parents may lawfully detain their children for the purposes of discipline. However, excessive detention may move beyond the bounds of reasonable parental discipline and render the detention unlawful (R v Rahman (1985) 81 Cr App R 349; JCS v R [2006] NSWCCA 221).
  41. Defence of another or defence of property can provide a lawful basis for detaining a person (R v Faraj [2007] 2 Cr App R 25).

    Alternative Offences

  42. There are some older authorities that suggest that every false imprisonment connotes an assault. However, false imprisonment and assault are now considered to be two distinct crimes (MacPherson v Brown (1975) 12 SASR 184; McFadzean v CFMEU (2007) 20 VR 250).
  43. While assault may be a factual alternative to false imprisonment, this is not necessarily the case (MacPherson v Brown (1975) 12 SASR 184; Zanker v Vartzokas (1988) 34 A Crim R 11).
  44. Judges will need to consider the position of the parties and whether there is a request to leave assault as an alternative offence before directing the jury on that offence (Jury Directions Act 2015 s11).
  45. The distinction between common law kidnapping and false imprisonment is that in kidnapping, the complainant is taken away from some place. There is no element of taking away in the offence of false imprisonment (Davis v R [2006] NSWCCA 392; R v Wellard [1978] 3 All ER 161). [1]

    Notes

[1] The offence of kidnapping under Crimes Act 1958 s63A does not require proof that the complainant was taken away (see Davis v R [2006] NSWCCA 392).

Last updated: 29 June 2015

In This Section

7.4.17.1 - Charge: False Imprisonment

7.4.17.2 - Checklist: False Imprisonment

See Also

7.4 - Other Offences Against the Person

7.4.1 - Intentionally Causing Serious Injury in circumstances of gross violence

7.4.2 - Intentionally Causing Serious Injury

7.4.3 - Intentionally Causing Injury

7.4.4 - Recklessly Causing Serious Injury in circumstances of gross violence

7.4.5 - Recklessly Causing Serious Injury

7.4.6 - Recklessly Causing Injury

7.4.7 - Negligently Causing Serious Injury

7.4.8 - Common Law Assault

7.4.9 - Statutory Assault

7.4.10 - Threats to Kill

7.4.11 - Threats to Inflict Serious Injury

7.4.12 - Stalking (From 7/6/11)

7.4.13 - Stalking (10/12/03 - 6/6/11)

7.4.14 - Conduct Endangering Life

7.4.15 - Conduct Endangering Persons

7.4.16 - Extortion

7.4.18 - Child Stealing

7.4.19 - Kidnapping (Common Law)

7.4.20 - Kidnapping (Statutory)

7.4.21 – Common law riot

7.4.22 - Affray