Date
Geographical Area
Pacific
Countries
Australia
Keywords
Case Name
Rowson v Department of Justice and Corrections Victoria
Case Reference
[2020] VSC 236
Name of Court
Supreme Court of Victoria
Key Facts
Rowson, a prisoner in Port Phillip Prison in Victoria, applied to the Court for an order releasing him from prison because of his health risks, including the risk that he will die if infected with Covid-19. He also claimed that the failure to release him from prison under a Corrections Administration Permit (CAP) (which would allow him to live outside of prison but remain in custody) was a unreasonable limit of his human rights, so would be contrary to the Charter of Human Rights and Responsibilities – specifically the right to life and the right to humane treatment when deprived of liberty.
Evidence suggested that although the chance of Rowson being infected with Covid-19 while in prison was low, if a prisoner or member of the prison’s staff were to get Covid-19, it could spread quickly in the prison and pose great risk of serious illness to older prisoners and those with significant illnesses like Rowson.
In his application, Rowson claimed that prison authorities breached their duty to take reasonable care for his health, referring to a number of breaches of hygiene which had occurred in his prison unit and the fact that no risk assessment of the virus had ever been undertaken despite national guidelines suggesting this be done.
Evidence suggested that although the chance of Rowson being infected with Covid-19 while in prison was low, if a prisoner or member of the prison’s staff were to get Covid-19, it could spread quickly in the prison and pose great risk of serious illness to older prisoners and those with significant illnesses like Rowson.
In his application, Rowson claimed that prison authorities breached their duty to take reasonable care for his health, referring to a number of breaches of hygiene which had occurred in his prison unit and the fact that no risk assessment of the virus had ever been undertaken despite national guidelines suggesting this be done.
Decision and Reasoning
Although the Court stated that there was a prima facie case that the prison had breached their duty to take reasonable care for Rowson’s health, the judge noted that as it was an interlocutory application, this was not a final finding of fact. However, this alone did not require Rowson’s release. Instead the discretionary considerations – the time left to serve, unresolved application of his CAP, and the fact that no case of Covid-19 had been detected in a prison in Victoria – did not favour his release from prison.
In terms of the claimed breaches of the Charter in relation to his CAP application, the Court did not consider that an order releasing Rowson from prison should be granted. This is because, in circumstances where there had been no occurrence of an infected person in prison, the Court was not persuaded that such an order should be made as a matter of the balance of convenience or for the justice of the case. However, they noted that an order releasing a prisoner from prison could be made by the Court in extreme cases.
In terms of the claimed breaches of the Charter in relation to his CAP application, the Court did not consider that an order releasing Rowson from prison should be granted. This is because, in circumstances where there had been no occurrence of an infected person in prison, the Court was not persuaded that such an order should be made as a matter of the balance of convenience or for the justice of the case. However, they noted that an order releasing a prisoner from prison could be made by the Court in extreme cases.
Outcome
As an interlocutory measure, the Court adjourned Rowson’s summons on the basis that an independent risk assessment should be carried out as to the risk of Covid-19 to prisoners and prison staff. Furthermore, as part of this assessment, staff and visitors should be screened when entering the prison.
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Disclaimer
This case law summary was developed as part of the Disaster Law Database (DISLAW) project, and is not an official record of the case.
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