What is False Imprisonment in New South Wales?

by Ugur Nedim & Sonia Hickey
Police arrest

A false imprisonment occurs where a person is detained in contravention of the law.

It can happen where police officers exercise an unlawful arrest; in other words; arrest a person in the absence of a warrant and without complying with the requirements for arresting a person without a warrant contained in section 99(1) of the Law Enforcement (Powers and Responsibilities) Act 2002; namely that:

  • The officer suspects on reasonable grounds that the person has committed or is committing an offence, or
  • The officer is satisfied that the arrest is reasonably necessary for any one of the following reasons:
  • To ensure the appearance of the person before a court
  • To prevent a continuation of the offence or the commission of another offence.
  • To prevent interference with evidence.
  • To prevent the fabrication of evidence.
  • To preserve safety or welfare of any person; not just witnesses and including the defendant.
  • To stop the person fleeing.
  • To obtain property in possession of the person in connection with the offence.
  • Because of the nature or seriousness of the offence.

An unlawful arrest can form the basis of a civil claim for compensation, and can in certain circumstances give rise to criminal liability.

It can also lead to any evidence being found during the arrest – such as drugs – being rendered inadmissible and the case being thrown out of court.

Case study

In 2017, a judge in Downing Centre District Court found in favour of a 24-year old Sydney commuter who sued the state of NSW for false imprisonment after police illegally detained him for four minutes and 15 seconds at a suburban train station.

Video evidence taken by Mr Le during his counter with Police was played to the court.

The court heard that  Mr Le was walking into the railway station when two police officers stopped him and asked for his Opal card and concession card.

They then asked him to produce photo identification to prove the cards belonged to him. Mr Le challenged the request, stating that the Opal card and concession card were sufficient for their purposes.

Detained by Police

Mr Lee waited for four minutes and 15 seconds as police performed a radio check, before he was told he was “free to go”.

During that time, when he asked if he was under arrest, the officer said he was not, but that he was being “detained” while police verified his identity.

The fact Mr Le reasonably believed he was not free to leave meant he was indeed under arrest in the eyes of the law, despite what police told him.

One of the officers claimed in court he had “reasonably suspected” that Mr Le possessed a stolen concession card because he appeared “young and fit” and was “evasive” when asked to hand the cards over.

However the judge found that the officer’s ‘suspicion’ that Mr Le may have committed an offence was “tenuous” rather than based on factual information as required by the law.

His Honour remarked that Mr Le’s youth was “not a fact which could reasonably ground a suspicion that the concession card may have been stolen”.

In Mr Le’s case, the judge made it clear that a person is under arrest if they reasonably believe they are not free to leave – a formal arrest and caution does not need to occur.

In this case, the officers had performed an unlawful arrest by asking Mr Le for something which the law did not permit them to request, and then telling him that he was being “detained”

The court awarded Mr Le $3201 in damages including interest.

Public pays for police misconduct

Civil payouts against the New South Wales Police Force which arise from false imprisonment are generally paid by taxpayers, not by the offending police officers themselves.

In fact, taxpayers paid out $24 million as a result of 300 civil claims against officers during the last financial year.

The figures include misconduct claims including battery, false imprisonment and malicious prosecution.

Unlawful detention can amount to a crime

Unlawful detentions can also give rise to criminal liability, such as for the offence of kidnapping. including kidnappings and domestic violence offences.

Kidnapping is an offence under section 86 of the Crimes Act 1900 which attracts a maximum penalty of 14 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that the defendant:

  1. Took or detained a person,
  2. Did so without the other person’s consent,
  3. Did so with the intention of holding the person for a ransom, or committing a serious indictable offence, or obtaining any other advantage.

The maximum penalty increases to 20 years in prison where you the offender was in the company of another person or persons, or caused actual bodily harm.

The maximum penalty increases to 25 years in prison where the offender was in the company of another person or persons, and caused actual bodily harm.

Four men were recently charged with unlawful detention the kidnapping of former Australian test cricketer Stuart MacGill after an investigation by NSW police.

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Authors

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

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