Skip to main content

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.

Leave a Reply

Your email address will not be published. Required fields are marked *

Request a free consultation