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Prisoner rights in a pandemic: Victorian Supreme Court decision in Rowson v Department of Justice [2020] VSC 236

Jack Trainor

The average reading time for this Alert is five minutes.

Human rights advocates and pro bono lawyers should pay close attention to the recent Victorian Supreme Court decision in Rowson v Department of Justice and Community Safety [2020] VSC 236. This case summary outlines how the Court dealt with a prisoner’s application for release to home detention because of COVID-19.

On Friday 1 May 2020, the Victorian Supreme Court refused an injunction application from a man who sought release from prison because of health risks and his vulnerability to the COVID‑19 virus. Instead of release, conscious of the ongoing danger the virus poses in prison environments, the Court ordered that an independent risk assessment be undertaken to determine whether any further measures should be implemented to preserve the health and safety of the applicant, his fellow prisoners and employees who work in the prison.

The decision follows growing concerns in the United States and in other parts of the world about the overwhelming impact of the coronavirus on prison populations, and that, if COVID-19 enters a prison, it will spread very quickly and be difficult to contain.

Rowson v Department of Justice and Community Safety [2020] VSC 236

Mark Rowson suffers from various heart and respiratory conditions. He is a prisoner at Port Philip Prison currently serving a sentence in excess of five years for fraud offences. He is eligible for parole in 2022. 

He sought orders releasing him from prison because of his specific health risks, including the risk that he will die, if he infected with COVID-19. Counsel for Mr Rowson submitted that, as a prisoner unable to protect himself, he was a ‘sitting duck’ to the virus.

Mr Rowson said that if released, he would live at his mother’s home under strict conditions imposed by Corrections Victoria and would, for the purposes of the Corrections Act 1986, remain in the custody of the Secretary of the Department of Justice and Community Safety (Department).

The injunction application was not the only method by which Mr Rowson had sought release from the Prison. Mr Rowson had also applied for a corrections administration permit (CAP) pursuant to s 57A of the Corrections Act.

CAPs are the statutory mechanism by which prisoners may obtain leave from prison including for health or medical reasons. The issue of a CAP is in the discretion of the Secretary of the Department. At the time of judgment, Mr Rowson’s application for a CAP had not been determined.

Cause of action

Mr Rowson’s case was advanced on several fronts but was (and continues to be) fundamentally one of negligence. He alleges that the Department, the Commissioner of Corrections Victoria and the State of Victoria (together “the defendants”) owe him a duty of care to take reasonable steps to ensure that he does not suffer serious injury or death from COVID-19. He says the defendants had threatened or intended to breach that duty by failing to exercise the discretion to issue him with a CAP or otherwise has not taken reasonable steps avoid him suffering harm.

Mr Rowson’s action is also grounded, in part, in the Victorian Charter of Human Rights and Responsibilities Act 2006. He argues that the defendants acted incompatibly with his human rights, specifically:

  • his right to recognition and equality before the law (s 8);
  • his right to life (s 9); and
  • his right to humane treatment when deprived of liberty (s 22).
The prima facie case

Mr Rowson gave evidence on affidavit about the steps taken to deal with the COVID-19 pandemic in the prison. He gave examples of poor standards of hygiene, lack of risk assessment of the virus and non-adoption of distancing that he had directly observed. Mr Rowson also relied on expert evidence indicating he had an increased risk of developing COVID-19 and dying from it. One expert, Dr Coker, also reported that “congregate settings like prisons provide an optimal setting for an outbreak and the prison population may be naive to the seriousness of COVID-19.

The defendants also led expert evidence about COVID-19 and the risks it poses to Mr Rowson. The defendants’ evidence also outlined the features of the Prison, healthcare services in the Victorian prison system and pointed to various measures taken to prevent the virus from entering the prisons and control the spread if it does enter. Those measures included:

  • the quarantining of new prisoners and those returning from overseas
  • halving the time for which prisoners are outside their cells
  • increased signage and instructions relating to the virus.
Victorian Supreme Court ruling

As the matter was an interlocutory application and the evidence was not tested under cross examination, no findings of fact were made, however Justice Ginnane noted “on Mr Rowson’s evidence there appears to be a gap between what policy anticipates should occur and what is actually occurring, at least in his unit.

Those facts and whether the State has breached its duty of care remain to be determined at trial.

The primary question in this application was whether, in order to protect Mr Rowson’s health and life before his matter proceeds to trial, it was necessary for him to be released from prison. For now, the Court has said no to that question.

In weighing whether the balance of convenience favoured releasing Mr Rowson, a crucial consideration was that no cases of COVID-19 have been detected amongst prisoners or prison employees in Victoria. Justice Ginnane also considered that Mr Rowson’s application for a CAP is still to be determined and his Honour also gave weight to public policy considerations including that Mr Rowson was in prison for serious offences and should serve out his sentence.

Justice Ginnane ordered the defendants to arrange for an independent risk assessment of the risk to prisoners and employees who work in the Prison including an assessment of the screening of staff and visitors when they enter the Prison. While that is being prepared, the application has been adjourned.

The way ahead

Justice Ginnane did not rule out that prisoners could be released by Court order because of COVID-19 in different circumstances, recognising that “the Court has power to make such an order in an extreme case under its inherent jurisdiction to preserve the subject matter of litigation.” 

The ruling has not shut the door on this application for release, or similar applications in future, should the virus spread into Victoria’s prisons.

As the prevalence of the virus in Australia (and Victoria) continues to fluctuate, we can expect public health policy to continue to shift. For the time being, the Court has declined to immediately intervene in decisions to do with the welfare of the prison population in light of COVID-19. Instead, it has called for an independent risk assessment of the risks to staff and prisoners so Corrections Victoria and the Court can have the benefit of that information. Mr Rowson’s case is ongoing and will be determined on the sufficiency of the precautions to manage the risk to prisoners.

Further information

If you require further information, please contact our Pro Bono team.

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