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
Media release Friday 7th December 2018
“Justice Health is attempting to rip off mentally ill patients in the Long Bay Forensic Hospital by taking their pensions. They are the most vulnerable members of society and receive the Disability Support Pension. This allows them to pull their lives together and build their future. The ALP and Greens have defended their pension federally in April last year, yet Justice Health has now made a grab for it” (see analysis )
“On 20/11/2018, Justice Health took legal action by suing the patients for fees from their pension to be involuntarily locked up in the hospital and be forcibly injected. This is despite it being well funded by the State and Federal Governments to take care of these patients,”
“These vulnerable patients, including Saeed Dezfouli who has been locked up at the Long Bay Hospital for almost 17 years, have 28 days to respond to the statement of claims of Justice Health otherwise they lose their case by default (see claim ).
“Dezfouli was sent a notice by McCabe Curwood, Justice Health’s solicitors, on 30th November 2018, asking him to pay $183,153, which increases by $60 per day. Justice Action asks for assistance with representation from the legal profession to defend them”.
“These mentally ill patients, unlike the prisoners in the NSW prisons, don’t have access to a law library and computers. Some of the patients have threatened that they will commence a dry hunger strike unless they are given a fair go to fight the case in court.
Media release Monday November 19, 2018
“Secret Victim Impact Statements (VIS) as proposed in the law before Parliament this week would deny the victim and mentally ill offender involvement in restorative justice. It is a misunderstanding of the process and must not pass. The victims’ groups agree with us”.
“Passing the Bill would mean that the victim does not engage with the offender to express their pain, achieve an understanding of why the event occurred, and reach a possible reconciliation. There is no similar provision in the criminal law as secrecy negates the intention of the VIS”.
“Research resoundingly supports the benefits to victims of the restorative justice process. The VIS provides a chance for the offender to be confronted with the effect of the offence, and to acknowledge it. Processes like circle sentencing and youth conferencing are based upon this principle. Restorative justice builds community through forgiveness. There must be a chance for the forensic patient to ask for forgiveness and have a chance at reconciliation. See research paper
“The idea that mentally ill offenders have less rights than those who consciously offended, is a misunderstanding of the basic principles of discrimination law and fairness. It relegates such offenders to having less standing in a court, and infringes on a basic procedural right of our legal system. Misstatements could be made, misunderstood and never confronted. Often families include both victim and offender, who are all part of this pain”.
“In reality, the government continues to mistreat victims. Compensation was reduced from $50,000 to $15,000 in 2013 despite calls for its return. This legislation is bullying disabled people in an attempt to satisfy the pain of the victim, whipped up by media interest. It’s a misguided King Hit, with the system blindfolding the offender and assuming some satisfaction to the victim in the process. It must not be passed in this form”.
Media Release Monday November 23, 2015
Today from 9am the NSW Law & Justice Committee will hold public hearings into the treatment of life sentence prisoners never to be released.
Justice Action will bring people with special experience to give evidence to the Committee at 11.15am.
Mr Robert Veen is an Aboriginal man who has served two consecutive life sentences. Mr Garry Page, described as an aggressive psychopath, served a life sentence after voluntarily submitting to brain surgery. Mr John Killick spent many decades in the highest security prisons with lifers before and after his helicopter escape from Silverwater prison.
Evidence will also be offered of a joint online counselling proposal to reduce recidivism prepared by victims’ organisation Enough is Enough and Justice Action that has been before CSNSW since 2014 without any progress. Justice Action will ask for the Committee’s support for this service to lifers and other prisoners.
Witnesses will be available for interview at the lunch break 12.45pm at the back of Parliament House.
Here is the Victims submissions analysis and earlier media releases on the meaning of the isolation of Minister David Elliott.
Media Release Thursday November 19, 2015
None of the twenty-six submissions to the Parliamentary Inquiry support the action of Corrections Minister David Elliott in creating a ‘living dead’ status, under pressure from the media. The victims’ organisations support offender rehabilitation programs, want respect for prisoners’ human rights and increased funding for victims. Most submissions (analysis) criticised the information provided to victims and said the situation need not have occurred.
This public contradiction provides a chance to solve difficult questions around crime. Media commercial interests and political vulnerability have distorted justice policy to give unwanted vengeance to victims instead of solving the problems. The same pressures have created chaos with an exploding prison population despite falling crime rates.
This stark exposure of structural defects provides a chance for the adoption of Justice Reinvestment principles. The people with ‘standing’ have spoken. Intensive correctional orders with electronic monitoring should accompany the closing of prisons. The money saved should be spent equally upon victims and offenders, going to where the problems are in the community. Multinational prison companies must not be allowed to build isolated housing, incubating crime, and costing $100,000 a year a prisoner whilst sapping much needed services.
Restorative Justice as shown by the SBSTV Insight program provides a human way to atone and heal our community even in the worst cases.
Media Release 29 October 2015
“As Mental Health Month ends, Saeed Dezfouli comes before the Mental Health Review Tribunal today with detailed evidence of the harm caused by the anti-psychotic drugs forced on him. His lawyer Peter O’Brien will ask the Tribunal to stop it. His case shows the fundamental disrespect we have for those we describe as mentally ill” said his primary carer, Justice Action Coordinator Brett Collins.
“He now suffers diabetes mellitus, Ischemic heart disease, coronary heart disease, and weight gain. These incontrovertible effects are labelled as risks. Independent psychiatrists have confirmed that Saeed possesses a genetic inability to properly metabolise the anti-psychotic mediations. This makes the ongoing forced administration of such drugs even more reprehensible. Last week a friend visiting Saeed commented ‘I found it incredibly alarming to see such a physical deterioration from a fit and healthy man’” said Mr Collins.
“Saeed Dezfouli is a forensic patient who has been in detention since 19 January 2002. Over the past 13 and a half years, Saeed has been continuously forcibly medicated with nine changes in the injections. He challenged his treatment in the Supreme Court in 2010 and 2013, and later successfully won the right to use his own name” said Mr Collins.
“An alternative treatment plan using social support has been rejected by the Forensic Hospital. Recommendations by the Tribunal in March 2014 for a consumer worker to assist his recovery, and access to a computer for his education ‘as soon as practicable’ have had not effect. His psychiatrist Dr Yola Lucire and former Chair of the Consumer Worker Committee Douglas Holmes will be giving evidence today. Rhetoric about consumer-centred care in mental health is really systemic abuse costing over $200,000 a year for each person like Saeed” said Mr Collins.
Life Prisoners Protest
Media Release October 29, 2015
Six prisoners on total life sentences never to be released have written a Submission to the NSW Legislative Council in response to an Inquiry into current practices for determining the Security Classification and Management of Prisoners Sentenced to Life Imprisonment. There will be public hearings on the matter on the 23rd and 27th of November.
The inquiry proposes the punishment and exclusion of prisoners more severe than ever before. Holding prisoners under deliberately destructive, high security conditions for the rest of their lives, denying them access to rehabilitation services that could help them learn and improve, potentially reduces them to a status of ‘living dead’.
Justice Action’s submission emphasises the importance of the Rule of Law in sentencing in order to ensure the key principles of hope, rehabilitation, reconciliation and the privacy and victims are upheld.
The inquiry has been established due to community concerns, garnered by media exposure of a victim’s grief regarding Minister David Elliott’s decision to lower the security status of inmates on total life sentences. Following a broadcast of the story on A Current Affair, Minister Elliott revoked the reclassification. It politicises grief and encourages an increase in the involvement of victims and the rest of the community in determining the sentencing of the accused.
The goal of the government is not to honour victim’s wishes but to gain political benefits from grief. Victim’s needs are being assessed through the scope of punishment for the offender. In 2013 the government reduced victim compensation for sexual assault from $50,000 to $15,000, attempting to placate victims with harsher penalties for the accused but failing to be responsive to victims’ personal needs.
Media Release October 28, 2015
“Six prisoners on total life sentences never to be released have written submissions to the NSW Legislative Council in response to an Inquiry into current practices for determining the Security Classification and Management of Prisoners Sentenced to Life Imprisonment. There will be public hearings on the matter on the 23rd and 27th of November,” said Justice Action Coordinator Brett Collins.
“Minister Elliott has proposed to the Inquiry the punishment and exclusion of prisoners more severe than ever before. The proposal is to lock them up under deliberately destructive, high security conditions for the rest of their lives, denying them access to rehabilitation services that could help them learn and improve. It would reduce them to the status of ‘living dead’,” said Mr Collins.
“His proposal would breach many basic principles of our community including the Rule of Law, the philosophy of hope, the authority of the court, the potential for reconciliation, the right to development and the privacy of victims. It is disgraceful wedge politics for which he must be condemned” said Mr Collins.
“The Inquiry was established following the exposure by A Current Affair of a victim’s anger at the offender’s reclassification. Under media attention, Minister Elliott revoked that classification and those of all other total lifers. But the Government’s real attitude to victims was exposed when in 2013 it reduced victim compensation payments such as for sexual assault from $50,000 to $15,000. The Baird Government is politicising grief, legitimising vengeance and abandoning compassion for not only victims and offenders but for the whole community,” said Mr Collins.
Comments: Brett Collins 0438 705 003
After an unprecedented six weeks in consideration, the Mental Health Review Tribunal made a 58 page decision on March 20, 2014 on the future of Saeed Dezfouli, the man who was subject of the ABC Background Briefing program “The Man Without a Name”.
‘The Tribunal rubber-stamped the hospital’s authority to act as it wants, despite the Supreme Court saying it had power over the hospital. The forced injections will continue in the highest security cells. It said if Saeed doesn’t “make a genuine effort to engage with the treating team’s current treatment plan which includes injected medication…he may simply continue to remain in his current circumstances indefinitely”. We are considering another appeal’ said Justice Action Coordinator Brett Collins.
Saeed said today: “I’m not surprised by the result. For twelve years they have been trying to reduce me and those around me to dazed, medicated semi-humans. That is their culture. They must respect our human right to learn and recover”. He has begun a weekly blog called “VOICE INSIDE MADNESS” reporting on what is happening around him.
Saeed has been held for over twelve years in the highest security hospital, never having intended any harm. If he was convicted as a criminal he would have served four years. The Tribunal referred to arguments that he had paid the penalty as “a complete misconception and fallacious”, “irrelevant and unhelpful …. and likely to unfairly raise false hopes and expectations”. It ignored the NSW Law Reform Commission Report that this was unfair, and its recommendation on “extending the requirement for the court to set a limiting term for all forensic patients”. (Report 138 Exec Summary 1.27 page X1X Recommendation 7.2) This issue featured in its media release” said Mr Collins.
The Tribunal permitted Saeed Dezfouli to publish his own name, and for comments to be published by his primary carer on the Justice Action website, media releases, emails and talks. But in a separate 12 page judgment the Tribunal said that the judgments themselves couldn’t be published, nor could the names of the psychiatrists or Tribunal members. No statements could be made on social media. It made threats against full public exposure like: “Mr Collins would need to be very cautious” and “he would be well advised to seek legal advice on in any case where there is the least doubt” make it clear that Saeed’s health interests aren’t the ones being protected from view’ said Mr Collins.
‘On forced medication, the Tribunal dismissed in one sentence the international research showing that cognitive behaviour therapy and social support are more effective, refusing to engage on the issue. The treating team had said there is “no evidence that suggests that consumer support in the absence of antipsychotic medication is effective for managing a chronic psychotic illness” and “there is in theory a risk of harm if he is in the community if he acted upon his delusions. Medication will lessen preoccupation with delusions, even if they are ongoing and would make him more manageable in the community”. That is the medicalisation of social problems’ said Mr Collins.
Douglas Holmes, TheMHS Emeritus Standing and spokesperson for consumers said: “I am disappointed with the Tribunal’s response as it seems to contradict their support for the newly released Mental Health Consumer Information Sheet and doesn’t understand the status of Justice Action”