Summary of interlocutory hearing judgment in Mark Rowson v Department of Justice, Corrections Victoria and the State of Victoria [2020] VSC 236

Overview

A case was brought in the Supreme Court of Victoria seeking orders to temporarily release a 52-year-old man from Port Phillip Prison in light of the serious risk of harm or death that COVID-19 would pose to him if a case of the virus arose in prison.

The man suffered from a range of health issues including a heart condition, asthma, uncontrolled blood pressure, angina and decreased renal function.

While the Court reserved making any findings of fact at the interlocutory stage, the Judge found that there was a prima facie case that the prison authorities have breached their duty to take reasonable care for the man’s health. 

The Court also found that the man has a strong prima facie case for an injunction to restrain the first defendant acting unlawfully under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006.

Jurisdiction of the court

The Supreme Court has jurisdiction, when cases are brought in connection with the risks posed by the COVID-19 virus, to consider whether specific orders are necessary to protect the health of particular individuals, including people in prison.

Breach of duty of reasonable care

The Court declined to make any findings of fact due to it being an interlocutory application but found that the prima facie evidence of the man, and the absence of any risk assessment carried out by Port Phillip Prison, supported a finding that there was a breach of the duty of care.

Evidence of the poor hygiene practices by the prison included claims that:

• people in prison have not received any information about COVID-19 prevention and management measures in prison, nor have they received any advice about social distancing;

• in any event, social distancing is not possible to observe in prison in all circumstances;

• people in prison do not have access to any hand sanitiser;

• people in prison are only provided with one bar of soap a week and have to buy additional bars, but since the beginning of the COVID-19 crisis they have been limited to one bar of soap a week; and

• the temperature of the water supply in prison cells has been lukewarm, so people do not have access to hot water to wash their hands and body, or clean their cell.

Undertake an independent risk assessment

The evidence established that no risk assessment was done at Port Phillip Prison despite it being recommended by the accepted national guidelines. Further, the Court found that while there might be statements of policy, it is another matter if they are being implemented.

In this regard, the Court ordered that the defendants must arrange for the undertaking and completion of an assessment of the COVID-19 related risks to people at Port Phillip Prison and that, having received the assessment, the defendants must direct G4S Custodial Services Pty Ltd – who are the private company that operates Port Phillip Prison – to implement the recommendations of the risk assessment.

Risk of COVID-19 in Victorian prisons

A significant proportion of the judgment noted the expert evidence on the risk of COVID-19 entering Port Phillip Prison, and the risk it poses to people behind bars if it does enter the prison. Although no findings of fact were made, the evidence suggested that the current risk of infection to a person in prison is lower than the risk of infection in the general community, but the risk would be higher than to the general population if a COVID-19 outbreak occurred in Port Phillip Prison.

The Court heard evidence that prisons provided “an optimal setting for an outbreak and the prison population may be naive to the seriousness of COVID-19.”  The risk increases as the number of people passing through the prison increases. Other risk factors in prisons include overcrowding, unsanitary conditions, poor ventilation and poor health care.

No release from prison

The Court determined that the balance of convenience did not favour the man’s release from prison at the interlocutory stage. Factors weighing against release include that he still has much of his sentence to serve, that he has an application for a corrections administration permit yet to be determined, the means by which he could remain in the Secretary’s custody outside of prison were not clear and that no case of the virus had yet been detected in a Victorian prison.

Implications of the case

While the Court did not order the release of the client, the Court ordered that a risk assessment examining the COVID-19-related risks to people in prison be carried out at Port Phillip Prison, and that any recommendations made as a result of that assessment should be implemented

The case paves a potential pathway for people at heightened risk of COVID-19 to argue for their release in future.

Copy of the judgment is available here.