On the 1st of May 2020, the Supreme Court of Victoria released an interim ruling for the case of Mark Rowson, who had requested temporary release from Port Phillip Prison during the COVID-19 pandemic on the basis of his susceptible health risks. The judge ordered (at ) Corrections Victoria to undertake a formal risk assessment of Port Phillip Prison according to the CDNA National Guidelines, the recommendations from which operator G4S must then implement.
The case centred upon three main issues, namely: whether a duty of care was prima facie breached by the Prison, the Court’s power in preserving the subject matter of litigation, and limitations placed on specific human rights under detention in the COVID-19 era. Notably, due to the interlocutory nature of the injunction, the court could not make determinations of legal fact as would occur in trial proceedings.
The Court was inclined to determine serious breaches of prisoner duty of care that had occurred based on Rowson’s evidence, in particular where the lack of sufficient hygiene practices within the Prison formed a heightened risk of viral infection. Mr Rowson’s affidavit was among several accounts which exhibited these concerns. Examples of likely breaches include, and are not limited to: failure to disinfect touch-screens kiosks, failure to require prison guards to wear protective gloves, failure to provide adequate personal hygiene products or general hand sanitizer for units, limited access to hot water, the contamination of laundry items with bodily fluids, and failure to advise general social distancing guidelines. Although the Court did not take this account as fact, they considered it a sufficient basis to conclude that a prima facie case could be established in relation to duty of care. These comments were made in the absence of an independent risk assessment, the outcome of which will be thoroughly conferred upon in subsequent hearings.
A noticeable issue addressed by the Court was their scope of power in preserving the subject matter of litigation. The exercise of this power was addressed by CJ Dixon in Tait v the Queen, emphasising the unfettered ability of the Court to adjourn matters to preserve the continuation of litigation. In this case, the Court affirmed their ability to execute such powers in relation to Rowson’s health. However, the vitiating factors of Rowson’s release were sufficient enough to prevent the Court from making such a determination. These implications included the length of his custodial sentence left to serve, a pending corrections administration permit (CAP) and the practicability of a custodial sentence outside of prison. More importantly, the severe threat to Rowson’s life would only materialise once the virus had entered the facility, the chances of which being 0.006%. In the case that those odds were to occur, the likelihood of viral infection rises astronomically to 44%. So far, there have been no recorded cases of COVID-19 in Victorian prisons. As the real threat to Rowson’s health and his fellow inmates continues to persist, the Court decided that the most appropriate decision would be to order an independent risk assessment of the Prison, with the subsequent findings to be implemented immediately. In the eyes of the Court, these orders were substantial enough to fulfil the preservation of the subject matter of litigation for the time being.
A significant issue yet to be determined is the limitations placed on human rights in the COVID-19 era. Rowson claimed that the Prison had breached their international obligations under the Charter of Human Rights and Responsibilities by their negligence with respect to hygiene practices. Specifically, the conditions subjected to him in detention threatened his right to recognition and equality before the law, the right to life and the right to humane treatment when deprived of liberty. An extract from the UN Human Rights Committee general comment on the right to life highlights the obligation by the State to take ‘…any necessary measures to protect the lives of individuals deprived of their liberty…’ (at ) . As this issue was directly related to Rowson’s CAP application, the Court was inclined to omit its consideration based on its pending determination, choosing to confine their decision to the action in tort. Nevertheless, the gravity of this claim will be of significant weight for proceedings following adjournment.
Although Rowson’s injunction for release was unsuccessful in this instance, the commentary of the Court alludes to a strong intention to preserve the subject matter of litigation when the appropriate time arises. The indication of the Court that Rowson’s CAP application would be declined suggests the imminence of further procedure and opportunity for his release.
COVID-19 Index page: Coronavirus must not enter prisons