How is false imprisonment a criminal offence
False imprisonment is a common law offence in New South Wales, South Australia and Victoria, while in the Code states such as Queensland and Western Australia, deprivation of liberty is an offence found in legislation.
The common law definition of false imprisonment
Looking to the common law, some guidance of what is meant by false imprisonment can be found in the judgment of Coldrey AJA in R v Huynh (2006) 165 A Crim R 586 (Vic CA), where his Honour said, with agreement from the others, the following in relation to false imprisonment (at 601 ):
“In essence, his Honour distilled from a myriad of authorities the proposition that false imprisonment was constituted by the intentional and unlawful restraint of liberty of another person against that person’s will.”
Further context can also be found in the judgment of von Doussa J in R v Garrett (1988) 50 SASR 392 (CCA) where false imprisonment is not only the unlawful restraint of liberty of another against their will, but also (at 405); “[t]he restraint need not be by physical barrier or actual physical force.”
We should however alleviate the concerns of some parents reading this piece who may be thinking to themselves; ‘that sounds like how i treat my child’, because as Lane LCJ in R v Rahman (1985) 81 Cr App R 349 (CA Cr D) observed (at 353):
“It hardly needs stating that a parent will very seldom be guilty of that offence (false imprisonment) in relation to his or her own child. The sort of restriction imposed upon children is usually well within the realms of reasonable parental discipline and is therefore not unlawful.”
It probably goes without saying that similar to other criminal offences, intent is a component of the offence. Therefore, the intention to deprive another person of their liberty will constitute an offence, even absent the intention to arouse fear or violence, or foresight of fear or violence which are elements generally not considered relevant to the offence (per Bray CJ in MacPherson v Brown (1975) 12 SASR 184 (FC)).
What is meant by ‘restraint’ in relation to the offence of false imprisonment?
As noted in MacPherson v Brown, there is no need for the victim to be physically touched, and it is considered sufficient for the threat of force to either the victim or another person for an offence to arise. Additionally, the threat of damage to valuable personal property may also be considered adequate (per von Doussa J in R v Garrett).