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Deprivation of liberty examples include lawful and unlawful deprivation of liberty. Instances of lawful deprivation of liberty includes lawful arrests and imprisonment by law enforcement officers in the lawful execution of their duties, as well as those lawfully detained whilst on remand, serving a sentence of imprisonment or in a mental health facility. In comparison, unlawful deprivation of liberty occurs outside of these circumstances by someone who is not lawfully authorised to do so, thereby amounting to unlawful imprisonment or detention. Unlawful deprivation of liberty raises rights of a person deprived of liberty, which may entitle that person to sue for compensation in civil proceedings.

Significantly, if a police officer unlawfully arrests and detains you which consequentially results in the disclosure of incriminating evidence that has resulted in one or more criminal charges, the court has the power to exclude the incriminating evidence. If the evidence is excluded, then the charges may be dismissed.

A criminal offence related to deprivation of liberty is ‘kidnapping’. Furthermore, an accused person depriving someone of their liberty for a period before or after an offence is committed is a ‘circumstance of aggravation’ in cases such as sexual assault, robbery, and break and enters.


Deprivation of Liberty Meaning

To deprive of liberty is to restrict another’s freedom of movement, essentially confining or detaining the person against their will. It can occur in different circumstances, with physical restraint not an essential element.

Fundamentally, to constitute deprivation of liberty, a person’s liberty or freedom to leave must be taken without their consent provided the detaining is unlawful.

Data obtained by the Australian Bureau of Statistics (‘ABS’) in July 2022 identified New South Wales as Australia’s ‘kidnapping capital’, with 210 in a year.  This can be compared to Victoria with 146, Queensland with 26, South Australia with 41 and Tasmania with only 3.

In 2022, around 30% of all kidnappings were family-domestic violence related, with 154 victims.

In relation to family-domestic violence related matters, most victims are female (87%) and aged 18 years or over (77%). Most family-domestic violence related matters did not involve the use of a weapon and occurred at a residential location.

All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person. This is reflected in section 19 of the Human Rights Act 2004, which is also reflective of Articles 10 of the International Covenant on Civil and Political Rights.

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Kidnapping Charges

In New South Wales, kidnapping is criminalised under section 86 of the Crimes Act 1900 (NSW). For customised detailed advice, please get in touch with our criminal lawyers Sydney office.

This section contains three types of the offence, namely the basic offence, aggravated offence and specially aggravated offence.

For the basic offence, the prosecution is required to prove beyond reasonable doubt that the accused took or detained a person, without their consent, with the intention of:

  • Holding the person to ransom,
  • Committing a serious indictable offence (i.e., one which carries a maximum penalty of 5 years imprisonment or more),
  • Obtaining any other advantage.

To detain a person means to prevent that person from leaving should they wish to do so. It includes causing the person to remain where they are.

Taking is a form of detention where the accused causes a person to accompany them so that the person is compelled to go where they did not want to go. It includes causing the person to accompany a person and causing the person to be taken.

The prosecution being required to prove that the accused had an intention to obtain an advantage does not mean that it is necessary that the advantage be actually achieved.

Holding a person to ransom involves the person being taken or detained in order to demand and obtain a sum of money for their release. However, the advantage sought to be achieved from kidnapping need not be financial and may involve psychological or sexual gratification.

The accused’s knowledge of a lack of consent can be established by the prosecution proving either that the accused actually knew the alleged victim did not consent or that the accused was reckless as to whether the alleged victim consented.

A person who takes or detains a child (under the age of 16 years) is to be treated as acting without the consent of the child.

However, person who takes or detains a child does not commit an offence if they are the parent of the child or are acting with the consent of a parent of the child, and the person is not acting in contravention of any order of a court relating to the child.

A maximum penalty of 14 years imprisonment is applicable.

The ‘aggravated offence’ requires the same elements to be proved, as well as a further circumstance that it was committed in the company of another person or persons, or at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim.

Actual bodily harm entails an injury that need not be permanent but is required to be more than merely ‘transient’ or ‘trifling’ as outlined in the case of R v Donovan [1934] 2 KB 498. Examples of actual bodily harm may include scratches and bruises.

A maximum penalty of 20 years imprisonment is applicable.

If both of these aggravating factors are present (i.e., the accused was in company and occasioned actual bodily harm to the alleged victim), the offence is specially aggravated and instead carries a maximum penalty of 25 years imprisonment.

By Poppy Morandin and Jimmy Singh.

Published on 01/07/2024

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