Residual Liberty and Segregation Breaches: DE v State of New South Wales [2026] NSWSC 157

Case Background

The recent decision of the Supreme Court of New South Wales in DE v State of New South Wales [2026] NSWSC 157 discussed the interpretation of the Detention Centres Act 1987 (NSW) (the Act) and the concept of ‘residual liberty’.

DE (represented by the Justice and Equity Centre) was placed in segregation from 26 June to 18 July 2016 (23 days) whilst lawfully being held on remand at the Cobham Juvenile Justice Centre.  DE argued (amongst other things) that despite being lawfully detained, he had ‘residual liberty’ and alleged the State (represented by Crown Solicitors) had breached sections 16 and 19 of the Act when segregating him, thereby falsely imprisoning him.

Importantly, DE did not give or call evidence from others, largely relying on evidence led by the State to establish his claims.

Lawfulness of DE’s segregation

DE argued that his segregation was for a duration longer than 3 hours prior to being approved by the Secretary (contrary to section 19(1)(b) of the Act). Acting Justice Schmidt relied on the statutory interpretation principles in Project Blue Sky, stating that section 19(1) of the Act, being that a segregation decision must be made ‘in order to protect the personal safety of another detainee, or of any other person’, was an essential preliminary. As the decision to segregate DE was made in accordance with section 19(1),  DE’s segregation being approved after he was segregated for over three hours, was a breach of merely a procedural condition.

Residual Liberty

Acting Justice Schmidt accepted that in truly exceptional circumstances, the conditions in which a person is held might affect the lawfulness of their detention itself. However, given the risk DE posed at Cobham and the State’s obligations under the Act and Work Health and Safety Act 2011 (NSW), there were no exceptional circumstances in DE’s case.

Schmidt AJ also relied on Owen-D’arcy v Chief Executive, Queensland Corrective Services (2021) 9 QR 250,  where Justice Martin rejected idea that if the statutory provisions which allow for further deprivation of a prisoner are not met, a person’s inherent residual liberty is infringed upon. Further, Schmidt AJ acknowledged that Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089 concluded that false imprisonment can occur within a prison, however, did not assist DE’s case given the interplay between the provisions of Act and the Work Health and Safety Act.

There is currently no publicly announced appeal notice of this decision.

Seek Legal Assistance

If you have any questions regarding detention rights, residual liberty, or potential false imprisonment claims arising from police or prison custody, please contact Jeremy King, Practice Group Leader – Police and Prisons, Principal & Accredited Specialist in Personal Injury Law at Robinson Gill.