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What is false imprisonment?

False Imprisonment

False imprisonment is known as a tort, or a civil wrong, and is a common law offence in New South Wales.

What is false imprisonment?

False imprisonment is “the intentional and unlawful restraint of the liberty of another person against the person’s will” (R v Huynh [2006] VSCA 21 at [83] per Coldrey J). This occurs when a person’s freedom to move around has been unlawfully restricted, such as being physically detained at a location for a period of time, or by preventing someone from leaving the location. The restraint must be total and not simply a partial obstruction (Bird v Jones (1845) 7 QB 742 per Patterson J). This can occur anywhere, including your home, on the street, in a vehicle, or in prison.

Importantly, the “restraint need not be by a physical barrier to actual physical force” (R v Garrett (1988) 50 SASR 392). This means that an individual does not have to be physically restrained or prevented from leaving a location. The threat or implication of force is enough. Importantly, there does not need to be an intention to create a fear of violence.

Therefore, a verbal direction to remain in a location, by an individual, such as a police officer, can constitute false imprisonment.

Examples of False Imprisonment

Examples of false imprisonment can include:

  • You have been detained by a police officer without a lawful reason; or
  • You have been unlawfully arrested by a police officer.

In the case of New South Wales v Robinson [2019] HCA 46, the High Court of Australia held that at the time of making an arrest under s99 of LEPRA, the arresting police officer must form an intention at the time of the arrest to charge the individual with an offence. Failure to form this intent, resulted in an unlawful arrest and false imprisonment of the individual arrested.

In the case Watson v Marshall and Cade (1971) 124 CLR 261, a police officer asked the plaintiff to accompany him to a psychiatric hospital. The plaintiff testified that he believed that if he did not comply with the officer’s request, he would be compelled to go along. In this case, the High Court of Australia, held that the plaintiff’s apprehension was justified, and that this “restraining” imposed on the plaintiff, constituted imprisonment (per Walsh J at 625).

In the case of Cowell v Corrective Services Commission (NSW) (1988) 13 NSW LR 714, the NSW Court of Appeal held that where a prisoner is held in detention beyond the terms of their sentence as a consequence of an honest or administrative error, the defendant is still liable for false imprisonment.

NSW Police Powers to Arrest

An unlawful arrest in New South Wales, can form the basis for a civil claim for compensation.

Police officers can also be found to have falsely imprisoned someone if they hold the individual in custody without lawful authority, such as a warrant, or for longer than is lawful for the individual to be detained.

The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), sets out the powers and responsibilities of the NSW police force.

Section 99 of LEPRA outlines the powers of police officers to arrest individuals without a warrant. The police officer must satisfy themselves that the arrest is “reasonably necessary” for any of the following reasons:

  • The officer suspects of reasonable grounds that a person is committing or has committed a crime;
  • To stop a person from committing or repeating a crime;
  • To stop a person from committing another crime;
  • To stop a person fleeing from the police officer or from the location of the crime;
  • To allow enquiries to be made regarding a person’s identity if it cannot be easily established, or if the police officer suspects the identity information provided is false;
  • To ensure the person appears before a court in relation to the crime;
  • To seize property in the person that is in connection with a crime;
  • To preserve evidence related to a crime, or prevent the fabrication of evidence;
  • To prevent a person from harassing or interfering with another person who may give evidence in relation to the crime;
  • To protect the safety or welfare of any person (including the person being arrested);
  • “[B]ecause of the nature and seriousness of the offence”;
  • The officer has been directed to arrest a person without a warrant by another police officer.

Law Enforcement (Powers and Responsibilities) Act 2002 No 103 – NSW Legislation

I want to bring a claim

What do I have to prove?

To prove false imprisonment, there is a two-step test:

  1. Was the person detained?
  2. If so, what was the justification for the detention?

The burden of justifying the detention falls on the defendant (Darcy v State of New South Wales [2011] NSCA 413]. Therefore, there is no obligation on the person detained, or plaintiff, to establish that the act of imprisonment was unlawful or malicious. It is the role of the defendant to prove the lawful justification for the imprisonment.


When someone has been falsely imprisoned, the consequences can be significant. Some of these consequences include:

  • Loss of freedom;
  • Emotional trauma;
  • Damage to reputation;
  • Financial loss; and
  • Social difficulties.

If you think that you have been unlawfully detained, you may be entitled to financial compensation.

A claim for false imprisonment must be brought within six years of the incident occurring. Speak with one of our qualified professionals today. However, a claim in personal injury that relates (where you have suffered a diagnosable injury at the hands of the police), must be brought within three years of the incident occurring.

Disclaimer: The above information is intended for general advice only and should not be construed as legal advice. The above information is subject to legislative and common law change over time. Please seek appropriate legal advice before undertaking any court of action.

4 replies to What is false imprisonment?

  1. The NSW police are still sending texts and emails and harassing my parents and friends.

  2. hey Ralph, I hope you and the family are well. My name is Jeff and my family and I have been harrassed constantly and blatantly for years by nsw police and I don’t see it stopping any time soon.
    There are very few to none who believe me when I speak of this and it’s so unbelievably frustrating and we’re indirectly forced to keep quiet about it otherwise everyone thinks you’re losing your mind and paranoid because after all it is the law right!!! I would really like to speak to you about your experience if you don’t mind please. Society NEED to know about what goes on.

  3. I was wrongfully imprisoned in 2022 because of my ex partner. It happened 2 and a half weeks after I built up the courage to make a formal statement against him for domestic violence, Sexual Assault and for trying to kill me and for keeping me against my will for 2 days after we broke up with the Family and Domestic Violence and Sexual Assault Unit In Geelong .The Police rang me and told me I owed money and had to go into the station to make a payment plan then I could take an undertaking of bail then go home and that’s I went into the station to find out what it was about as the officer didn’t know who I owed it to , he had no information he said hence why I had to go into the Geelong Station. Once I got there they said I owed $2093 58.they didn’t have any other details and told me I wasn’t going home I was going to jail .apparently there was a warrant for imprisonment but they couldn’t show me because they didn’t have it , they didn’t read me my rights, they didn’t tell me I was under arrest and no one knew whyci was there. I was refused bail.they knew I was a Domestic violence survivor and I had orders on my ex I had medical conditions that I needed medication for , a jugular aneurysm, migraines, nausea, Manic Depression, anxiety panic attacks and nightmares, I never seen a lawyer untill the following day and got my welfare call.i never got my medication or my glasses. My strip search was done with the door not completely closed it was open quarter way open and I could see police officers walking past .I was in the cells for 3 days then transferred to the women’s prison and was there for 5 days and the same thing there it was terrible I have PTSD and my nightmares are worse.The Police said to me for you to be here someone knows someone because your a clean skin and never and never been in trouble before . It turned out it wad to do with my The civil case my ex partner had against me and his lawyer admitted to my partner he put me in jail and kept me there longer. The whole ordeal has been a nightmare and is still continuing my phone has been tampered with ,I get followed by police , pulled over by police for no reason, they just ask my name then drive off.they don’t ask for my licence, nothing. Since all of this I have had some try to break into my house twice , someone knock on my front door then it’s the wrong house wanting to know who’s in the house , then 5 mins later the same thing. I had to move house previously 3 times because of my ex partner harassing me and now all this strange stuff is happening. I hardly leave the house now. This is only just touching the surface there’s alot more.

  4. My wife claimed I threatened her with a knife in a pitch black room she then told her police detective friend lies
    The detective then wrote a statement and lied that she had seen forms of DV over the past years even though I haven’t seen or spoken to the detective in over ten years I can prove she lied I

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