In Queensland, 'Deprivation of Liberty' is a serious charge that encompasses unlawfully confining or detaining a person against their will. This offence is particularly sensitive because it infringes on the fundamental human right to freedom of movement. If you find yourself accused of this charge, it is crucial to understand what it entails legally and the consequences you may be facing.
The Origin of the Law
Deprivation of liberty offenses arise under various laws and statutes in Queensland, which are part of the larger framework of Australian criminal law that seeks to protect individuals from harm and protect their rights. This legal concept has evolved through case law, where past judgments have shaped the understanding and application of what amounts to deprivation of one's liberty.
The Law
Section 355 of the Criminal Code states that
355 Deprivation of liberty
Any person who unlawfully confines or detains another in any place against the other person’s will, or otherwise unlawfully deprives another of the other person’s personal liberty, is guilty of a misdemeanour, and is liable to imprisonment for 3 years
What does the Prosecution have to prove?
The prosecution must prove that:
1. The defendant:
- confined or detained another in any place against the other person’s will; or
- otherwise deprived another of the other person’s personal liberty.
2. The defendant did so unlawfully. That is, not authorised, justified or excused by law.
Definitions
Detain means keep in confinement or under restraint. Restraint can be exercised by threats. The defendant does not have to use force or physical restraints. If the defendant compels the person by threats to remain in a place against that person’s will, that is sufficient. Depriving of liberty simply means taking away the free choice of a person to move about as he or she wants.
Unlawfully Deprives includes the denial of enjoyment of something.
Personal Liberty is ‘the condition of being able to act in any desired way without restraint; power to do as one likes.’ Unlawfully deprives means taking away the free choice of a person to move about as he or she wants. A person may be deprived of their liberty not only against their will but also where the deprivation was achieved by fraud, done without knowledge or where the complainant lacks capacity.
Which Court hears the charge?
The matter is dealt with in the Magstrates court where the offence occurred.
Defences to the Charge
Every individual is entitled to a defence, and in the context of a deprivation of liberty charge, several defences may be applicable depending on the circumstances of the case. For example:
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Consent: If the person alleged to be deprived of their liberty consented to the restrictions, this could be a viable defence.
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Lawful Authority: Actions taken under lawful authority, such as those by police officers or under mental health laws, or parents lawfully dealing with their children may not constitute unlawful deprivation.
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Mistake: A genuine mistake about the legal status or entitlement to confine another person may at times be a defence.
However, it's important to note that every case is unique and the success of such defences depends greatly on the specific facts of your case.
Penalties
The maximum penalty is 3 years in prison.
The penalty for deprivation of liberty depends on a number of factors including
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The circumstances of why the offence occurred
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What exactly happened
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Was any violence threaten or used
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The defendants criminal history
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Whether the parties were in a domestic relationship
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How long the offending lasted
- Whether other charges like an assault charge or breach of a DVO is also bought.
While the maximum penalty would be rare In about 50% of cases before the courts a term of imprisonment is imposed but the court can in appropriate circumstances choose to suspended that or release a person on probation without them serving any actual time in prison.
If the offence involved people in a domestic relationship the police or the courts may issue a domestic violence order or vary an existing one.
Case Example of the charge of Deprivation of Liberty Charge Queensland
In R v East the defendant was found guilty of deprivation of liberty when he locked 2 federal police officers in his businesses reception when they were there trying to serve official documents.
In R v Adams the defendant pleaded guilty of deprivation of liberty after he entered a liquor store and locked the automatic door trapping two staff members inside until the police arrived.
What if a Police Officer wants to talk to me?
Never talk to the police without getting legal advice first. Its rare you can explain a situation away and even if you are innocent or have a defence you can make the situation worse by talking to the police.
Read more with our article: Police Questioning and your Right to Silence
Legal Representation Matters
If you are facing a charge for deprivation of liberty, the importance of seeking experienced legal representation cannot be overstated. Legal professionals specializing in criminal law, such as Clarity Law, possess the expertise necessary to provide valuable guidance and build a robust strategy, tailored to the specifics of your case.
For anyone charged with or accused of deprivation of liberty in Queensland, remember that this article serves merely to inform and should not be taken as legal advice. Every situation is unique and demands the personalized attention of a professional. If you require assistance or more information, it is recommended that you contact a legal practitioner who can provide specific guidance related to your case, what the law is, how the offence is dealt with in the Magistrates Court and whether you will have any defences to the offence or if negotiations with the prosecutor is possible.
For immediate assistance, you can reach out to Clarity Law at 1300 952 255 for support from a team of dedicated lawyers who pride themselves on ensuring that good people make it through tough times.
Engaging Clarity Law to act for you
Engaging us gives you the best chance at trying to avoid serving time in prison. We are one of the leading criminal law firms in South East Queensland. Just some of the benefits of us acting for you include:
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we know the judges and what they want to hear to give you the best outcome
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we have good relationships with the prosecutors meaning we can often have them not seek an actual prison sentence
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we are there to help you through the process and make everything as stress free as possible
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engaging us shows the court you are taking your charges seriously
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you will be fully informed of what is to happen in court and what this means for you after court
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unlike the police or the Judge, we are there to look after you, your privacy and your interests
How do I get more information or engage you to act for me?
If you want to engage us or just need further free information or advice then you can either;
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