Marrogi v Secretary, Department of Justice and Community Safety & Ors

HUMAN RIGHTS - Compliance with the regulatory requirements for strip searches of prisoners under the Corrections Regulations 2019 (Vic) - Strip searches and requirement to permit private dressing immediately following a search - Corrections Regulations 2019 (Vic), regs 86(2)(a), 86(2)(e).

DECLATORY RELIEF - The availability of declarations that time spent by a prisoner in particular areas in prisons does not constitute time 'in the open air' for the purposes of s 47(1)(a) of the Corrections Act 1986 (Vic).

PRACTICE AND PROCEDURE - Decision to permit reopening of evidentiary case to tender further evidence after conclusion of evidence but while submissions ongoing - Decision to determine some but not all issues in separate judgment.

1 George Marrogi (the plaintiff) is currently serving a term of 38 years' imprisonment. At the commencement of the proceeding, he was imprisoned in the Acacia High Security Unit at Barwon Prison.[1]

2 The plaintiff is in the legal custody of the first defendant, the Secretary to the Department of Justice and Community Safety, by reason of s 6A of the Corrections Act 1986 (Vic). The plaintiff has been imprisoned in the Metropolitan Remand Centre (MRC), of which the second defendant is the General Manager, and in Barwon Prison, of which the third defendant is the General Manager.

3 The plaintiff has brought proceedings with respect to his conditions of imprisonment, and certain conduct of prison authorities relating to his treatment while imprisoned in the Exford Unit of the MRC and in three high security units of Barwon Prison.[2] He alleges that the defendants:

(a) have failed to observe requirements of the Corrections Act as to the right of prisoners to have an hour 'in the open air' for the periods between 2 May 2023 and 11 December 2023 and from 22 April 2024 to the time of the hearing;[3] and

(b) have, by strip searches conducted on a regular basis since May 2023, contravened requirements of the Corrections Regulations 2019 (Vic) as to the conditions in which a prisoner can be strip searched by not allowing him to dress in private immediately afterwards.[4]

4 The plaintiff seeks declarations in respect of these alleged contraventions. This judgment addresses those claims for relief.

Decision to determine some but not all issues in the first stage of proceeding

5 The plaintiff also brings a more general claim relating to the onerous conditions of his detention as a maximum security prisoner. The plaintiff contends that the conditions of his detention:

(a) contravene s 7(1) of the Corrections Act, by which the Secretary has responsibility for 'monitoring performance in the provision of all correctional services to achieve the safe custody and welfare of prisoners and offenders';

(b) contravene s 20(1) of the Corrections Act, which requires that '[a]n officer in charge of a prison or part of a prison must take all reasonable steps for the security of the prison or part of the prison', and s 21(1) of that Act which provides that a Governor of a prison 'is responsible for the management, security and good order of the prison and the safe custody and welfare of the prisoners'; and

(c) limit his rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) and are not demonstrably justified.

6 The defendants claim, in substance, that the conditions of the plaintiff's detention, although onerous, are made necessary by the plaintiff's behaviour and the safety and security risks that he presents, and that there is no contravention of the Corrections Act, nor the Charter. The defendants tendered evidence of the plaintiff's past behaviour and the risks he is considered to present, and submitted that the conditions in which he was held were justified, by reference to these risks.

7 The evidence in this proceeding was heard in September 2025 and closing submissions were commenced, but not completed, in the time available for the trial. The hearing was adjourned on 17 September to 16 October 2025 for submissions to be completed. On 15 October 2025, the defendants issued a summons seeking leave to reopen their evidence in the proceeding.[5]

8 The application was made to permit the defendants to tender evidence from Melissa Westin, the Deputy Commissioner Custodial Operations Division of Corrections Victoria, that on 17 September 2025, Corrections Victoria staff conducted a search of the plaintiff's cell and the following contraband was found and seized:

(a) a mobile phone and a charger,

(b) three screwdrivers and a ratchet tool, and

(c) 51 unidentified blue heart-shaped pills.[6]

9 The defendants applied to reopen their evidentiary case to tender this further evidence, on the basis that the discovery of this contraband was a serious security incident which should be taken into account in considering the plaintiff's claims that his conditions of imprisonment were unjustifiably harsh, and contravened the Corrections Act and Charter.

10 On 16 October 2025, I heard the defendants' application. The defendants submitted that the evidence was not reasonably discoverable because it was found on the day that the parties were before this Court (the third day of the hearing),[7] after receipt of intelligence as to the potential existence of contraband in the plaintiff's cell.

11 On 31 October 2025, I made orders granting the summons and providing the defendants with leave to reopen their case.[8] Although there was some delay in making the application, the evidence was plainly not evidence which could have been given prior to the hearing. As the relevant incident arose on the last day of the hearing before it was adjourned, there was reason why evidence of it was not adduced during the hearing itself.[9]

12 The plaintiff submitted that the evidence, even if admitted on a reopening, was not relevant, first because the declarations sought by the plaintiff were sought with respect to the period up to when the evidentiary case closed on 16 September 2025.

13 The declarations sought in the Further Amended Originating Motion were not limited in time to the closure of the parties' evidentiary cases, but were open ended. Although the plaintiff foreshadowed, in response to the defendants' application to reopen, amending the Further Amended Originating Motion to limit the period with respect to which the declarations were sought, that had not occurred by the time of the application to reopen. The plaintiff had also opened their case on 15 September 2025 on the basis that 'the claim runs to the date of this hearing'.[10] However, the hearing was continuing for closing submissions at the time the application to reopen was made.

14 It was also submitted by the plaintiff that the evidence was not relevant because it was 'whilst serious, a routine occurrence at Barwon'.[11] The plaintiff filed an affidavit exhibiting an extract of a publicly available Corrections Victoria report which referred to contraband found in Barwon Prison in the year ending 30 June 2025,[12] and relied on this to submit that the finding of contraband of that nature 'is routine'.[13] I did not accept this submission. The nature of the contraband found in the plaintiff's cell - a mobile phone, items capable of being used as a weapon, and drugs - could on no view be regarded as 'routine' in a prison environment, even if there are regular incidents of a range of contraband being found in cells.

15 The contraband revealed by the Corrections Victoria data included a wide range of contraband posing different risks and different degrees of risk, including smoking contraband, nicotine oil and alcohol. The data apparently applies across all parts of the prison, including the mainstream as well as the high security and the management units.[14] There were also smaller, but still significant, numbers of 'edged weapons' and 'electronic devices'. Each such discovery would be serious and warrant investigation. The seriousness of a discovery of particular contraband will also depend on context. In the plaintiff's case, he had been convicted in March 2023 for offences of importing large commercial quantities of heroin and methamphetamine in a drug trafficking operation that he had conducted by telephone from prison, through misuse of his right to have unmonitored legal phone calls.[15] It is understandable that finding a mobile phone in the plaintiff's cell was regarded by prison authorities as a serious security incident.[16]

16 I accepted that the evidence that the defendants sought to tender may be relevant, first because the plaintiff had put his recent behaviour in issue. It had been put to one of the defendants' witnesses in cross examination that the plaintiff had instructed he had been 'incident-free for five or six months', with an implicit invitation to agree with that proposition.[17] Counsel for the plaintiff later submitted that he had 'been of good behaviour for five or six months now'.[18]

17 The evidence does not make possible any determination as to how the contraband was in the plaintiff's cell and who was responsible for it being there. It would be inappropriate for me to make findings or to speculate as to how the contraband came to be in the plaintiff's cell, given that processes such as a Governor's disciplinary hearings under the Corrections Act or criminal charges remain possible. However, the fact remains that the incident had occurred and would need to be investigated. That requirement is itself something that will bear on the management of the plaintiff in prison. I considered that it would be artificial, being on notice of the occurrence of this incident, to decline to hear the new evidence, as it would have meant proceeding on the incorrect basis that the implicit acceptance in the course of Ms Hosking's evidence that the plaintiff's instruction that he was relevantly 'incident free' remained correct.

18 The plaintiff submitted that there was some urgency to the proceeding, and there would be prejudice in any delay in determining it. I accepted that this was the case. The effect of delay would be particularly serious in the context of whether the rear yards of various cells in which the plaintiff had been held and exercise yards to which he had access provided the opportunity for the time 'in the open air' required by s 47(1)(a) of the Corrections Act. This is a matter important to the plaintiff, but also has significant consequences for prisoners held in the same or similar cells. I therefore accepted a suggestion that it would be feasible to proceed to determine the application for relief based on s 47(1)(a). It was also submitted that I could determine the application for declaratory relief in relation to the plaintiff's claim that he had been subjected to strip searches which did not comply with the Regulations, given that the defendants did not resist a declaration and the parties had submitted a joint memorandum in support of declaratory relief being granted on that issue.

19 These two categories of claim - access to the open air pursuant to the right in s 47(1)(a) and compliance with the regulatory requirements for strip searches - are not dependent in any way on the behaviour of a prisoner. They are minimum standards set by the Corrections Act and Regulations. Evidence as to the plaintiff's behaviour, including the finding of contraband in his cell, does not have a direct bearing on whether prison authorities have complied with s 47(1)(a) and reg 86(2)(a) of the Regulations. For that reason, I will determine those aspects of the plaintiff's application now, while the remaining part of the plaintiff's application, to which the further evidence the subject of the reopening application may be relevant, is adjourned until February 2026.

20 The first issue for determination is whether, in the circumstances in which the plaintiff has been imprisoned in the relevant periods since May 2023, he has been offered the opportunity to be in the open air for at least an hour each day, if the weather permits, as required by s 47(1)(a) of the Corrections Act. That subsection provides:

(1) Every prisoner has the following rights -

(a) if not ordinarily engaged in outdoor work, the right to be in the open air for at least an hour each day, if the weather permits;

21 The plaintiff has not been engaged in outdoor work. The issue raised by his claim is therefore whether he has had access to circumstances satisfying the description of 'in the open air' for at least an hour each day. That question involves a consideration of the rear yards of each of the cells in which he has been held in the periods the subject of his claim, as well as consideration of the exercise yards which he has been permitted to access, to determine whether being in those spaces constitutes 'be[ing] in the open air'.

22 Secondly, the plaintiff alleges that on numerous occasions over the period of his imprisonment, he has been strip searched and then not permitted to dress privately immediately afterwards, contrary to the requirements of reg 86(2)(e) of the Regulations as it then applied.[19] That regulation is part of a scheme of regulation of strip searching in Victorian prisons and, until 18 November 2025, provided:

86 Strip searches of prisoners - general requirements

(2) Prison officers conducting a strip search of a prisoner must ensure that -

...

(e) the prisoner is allowed to dress in private immediately after the strip search is finished;

23 The plaintiff's imprisonment history relevant to the relief sought in this proceeding is as follows:

(a) From 2 May 2023 to 11 December 2023, the plaintiff was imprisoned in Olearia and Acacia high security units at Barwon Prison.[20]

(b) From 11 December 2023 to 22 April 2024, the plaintiff was imprisoned in cells 1, 2, 12 and 23 at the Exford Unit at the MRC. [21]

(c) From 22 April 2024 to 16 September 2025, the plaintiff was moved from MRC to Barwon Prison, where he was imprisoned in Acacia, Melaleuca and Olearia Units. [22]

(d) From 17 September 2025, following the finding of contraband in the plaintiff's cell and the cells of other prisoners, the plaintiff was moved from Barwon Prison to the MRC where he remains to the present day. [23]

The s 47(1)(a) issue - do the relevant spaces permit a prisoner to 'be in the open air'?

(a) between 11 December 2023 and 22 April 2024, the first and second defendants failed to provide him with an hour in the open air on any day; and

(b) between May 2023 and 11 December 2023, and then from 22 April 2024 until the time of making submissions, the first and third defendants failed to provide him with an hour in the open air on any day.[24]

25 The declaratory relief the plaintiff seeks is in the following terms:

A declaration that the following areas do not constitute being "in the open air" for the purposes of section 47(1)(a) of the Act:

(i) The covered rear courtyards of the cells in the Exford Unit at the Metropolitan Remand Centre;

(ii) The covered rear courtyards of the cells in the Olearia Unit at Barwon Prison;

(iii) The covered exercise yards in the Olearia Unit at Barwon Prison;

(iv) The covered rear courtyards of the cells in Acacia Unit 4 at Barwon Prison;

(v) The covered exercise yards in Acacia Unit 1 at Barwon Prison;

(vi) The covered rear courtyards of the cells in the Loss of Privilege Unit within the Melaleuca unit; and

(vii) The covered exercise yards in Olearia Unit 4.[25]

The evidence on the 'open air' spaces: the View and Statement of Agreed Facts

26 Prior to trial, the plaintiff applied for a court view of certain cells in Barwon Prison and the MRC. I granted that application, and the view occurred on 16 September 2025, in the company of my associates and legal representatives of the parties. The view encompassed inspection of the following:

(a) Cells 1, 2, 12 and 23 in the Exford Unit at the MRC.

(b) Cell 12 and the exercise yards in the Olearia Unit 2 at Barwon Prison.

(c) Cell 29 and the exercise yards in the Olearia Unit 3 at Barwon Prison.

(d) Rear courtyards in the Melaleuca Unit 4 at Barwon Prison.

(e) Exercise yards in the Acacia Unit 1 at Barwon Prison.

(f) Cells 21, 23 and 24 in the Acacia Unit 4 at Barwon Prison.

27 I was able to see and experience the above spaces, and a video recording was made of the view which was then jointly tendered by the parties.[26]

28 Much of the evidence given by the parties was not relevant to the s 47(1)(a) issue and related to other aspects of the plaintiff's claim. Evidence was given by the second defendant Mr Selisky[27] and the third defendant Mr Slater[28] about the features of the cells. The plaintiff objected to aspects of that evidence.[29] The plaintiff contended that insofar as it contained descriptions of cells and yards and statements that they permit natural light, rain and sun to enter, this was not evidence of fact but inadmissible opinion.[30]

29 At the hearing on 15 September 2025, I ruled that Mr Slater's and Mr Selisky's evidence contained opinions based on their broad observations of these cells the basis for which was not clearly identified, and did not involve the application of specialised knowledge.[31] I was also not satisfied that there was any evidentiary value in the evidence in circumstances where the view would enable me to make my own observations about the cells.

30 The parties later tendered the Statement of Agreed Facts after the hearing which set out very clearly the dimensions of the cells and the materials from which they were constructed.[32] The facts agreed in the Statement of Agreed Facts are set out in Annexure A to this judgment. As to the features and feel of the cell yards and exercise yards, the best source of evidence on those matters was my observations on the view, and the video taken of that view and tendered jointly by the parties.

31 The plaintiff gave evidence about his cell accommodation, and in particular as to his cell accommodation from 11 December 2023, which is the commencement of the period identified as the relevant period for the purposes of relief in this case. His evidence was that he was moved from Barwon Prison to the Exford Unit at the MRC on 11 December 2023, and placed in cell 23.[33] While placed in cell 23 he had access to a rear yard connected to his cell. He gave evidence that this yard:

...was mostly covered by a solid roof, except for a small section at the back which had a roof made of heavy metal mesh. This rear-yard was typically opened at 8:30am and closed and locked at 4:30pm. Other than having access to this covered courtyard I did not have any time out of my cell on a daily basis.[34]

32 The plaintiff says that from 1 January 2024 to 28 January 2024, he was permitted to access the 'small gym' in the Exford Management Unit at the MRC twice a week for approximately 45 minutes.[35] He describes this gym as being 'indoors'.[36] On 28 January 2024 he was 'alleged to have assaulted a prison staff member'.[37] The defendants' evidence as to this event is that when prison staff were issuing breakfast, the plaintiff squirted faeces out of a bottle at one of the prison officers, and verbally abused the officers.[38] The plaintiff was subsequently convicted in the Magistrates' Court of the offence of assaulting a prison officer on duty.[39] The plaintiff gives evidence that as a result of this event, he was moved out of cell 23 and into cell 1 in the Exford Management Unit.[40] The plaintiff says that cell 1:

...had a covered rear-yard with solid walls and a roof that had a three-layer covering consisting of a heavy-duty metal mesh, then a layer of tightly grated metal, then a layer of corrugated plastic. I was given access to this area from approximately 8:30am to 4:30pm.[41]

33 The plaintiff says that from 29 January 2024 to April 2024, he was 'largely confined to [his] cell, with no regular access to other areas and no visits to the unit's indoor gym'.[42] At some time in March, he was moved to cell 2 in the Exford Management Unit which has a rear yard with the same features as cell 1, and was later moved back to cell 1 in mid-March. On 8 April 2024, the plaintiff set his cell on fire and was moved to an observation cell in the Exford Unit, which had a similar yard to cells 1 and 2.[43] On 22 April 2024, the plaintiff was transferred from that cell to Barwon Prison where he was placed in the Acacia Loss of Privileges Unit 4 section.[44] The cell in which he was placed had a rear yard which he could access for approximately an hour a day from a door in his cell, and which he described as follows:

The yard's two side walls are made of brick, with the far wall being caged mesh, with two reinforced gates and a layer of Colourbond steel that allows staff outside access if needed. The roof of the rear-yard is mostly concrete save for an arch in the middle which is made of a sheet of metal with holes in it.[45]

34 On 31 May 2024, the plaintiff was moved to the Acacia High Security Unit 1 in Barwon Prison, which has no rear yard.[46] He was permitted to access the unit's two exercise yards, for one hour a day, but did not use them because he was on a handcuff regime which required him to be handcuffed when being escorted to and from the yards from his cell. The plaintiff described the yards as follows:

Yard 1 is the larger of the two, at about 18 metres by 8 metres, with the side two walls made of brick and the far end wall made of Colourbond steel. The roof of this yard is made of rows of thick reinforced steel sleepers that are covered by two sheets of metal mesh. This yard has a phone to make calls, a boxing bag and a chin up bar.

...

Yard 2 is much smaller and contains gym equipment and a phone. The roof of this yard consists of a layer of metal with holes, with one section of the yard having an additional solid layer. The walls consist of two sides being layers of reinforced steel, one wall which contains internal windows that look into the unit, and one wall which is brick.[47]

35 In February 2025, the plaintiff was moved to Olearia High Security Unit 4, where the cells do not have an attached back courtyard. The plaintiff says that while in this unit:

For a period of about 90 minutes in the morning and again 90 minutes in the afternoon I was permitted to use one of the exercise yards in Olearia by myself. However I did not take this opportunity, because I lacked any motivation to exercise after how long I have been cell-confined and isolated for, and how long I have gone without training.

...

The exercise yards in Olearia High Security Unit are all enclosed, allow very little sunlight in due to the metal mesh roofing, and have fixed exercise equipment. Some of these exercise yards have windows which provide limited views of some grass areas of the prison or the external prison wall.

Given the walls of the management unit exercise yards are concrete (except for the rare window), the lack of open air and unobstructed sunlight, and the fact that I was there by myself, it really just felt like an extension of my cell, so it was depressing and brought me no relief from my situation.[48]

36 The plaintiff gives evidence that from May 2024 up to the time of his affidavit in April 2025, he was placed in the Melaleuca Loss of Privilege Unit at Barwon Prison for periods of up to 28 days at a time due to his involvement in incidents involving threatening behaviour to staff, attempted assault of staff members and breaking a unit office computer screen.[49] The plaintiff's evidence is that he was permitted to access a yard attached to the cell for about an hour a day, and that:

These cells have rear-yards but they are enclosed with concrete walls, a heavy crim-safe gate at the far end, and a heavy metal mesh roof that obstructs most of the natural light. The courtyard is about the same size as the cell, and features no equipment or furniture.[50]

37 The defendants tendered evidence about the conditions in the High Security Units (HSUs) and Management Units (MUs) in which the plaintiff had been held. This was relevant to the types of spaces that prison authorities regard as satisfying the right of prisoners to be in the open air conferred by s 47(1)(a). Some yards are attached to cells, and others are separate exercise yards. Jennifer Hosking, the Assistant Commissioner, Sentence Management Division, Corrections Victoria gave evidence that:

CV has a range of accommodation for separated prisoners across HSUs and MUs which provide a range of security, supervision and support requirements. For example, some HSUs and MUs have a yard attached to each cell which provides open air without the need to move prisoners to an exercise yard. These are often used for particularly violent and unpredictable prisoners to reduce the risk to staff during moves. Some HSUs and MUs have larger cells and yards and some have small kitchen facilities providing greater amenity for prisoners who are separated due to threats to their own safety rather than the risk they pose to others.[51]

38 Nicholas Selisky was the General Manager[52] of the MRC during the time that the plaintiff was detained in that prison's Exford Unit in late 2023 and early 2024. He has worked for Corrections Victoria since 1990 and has held various prison officer and management positions over that time, including the position of General Manager of each of Victoria's maximum security men's prisons.[53] He gave evidence about the configuration, size and features of the cells in the MRC, which is a maximum security men's remand prison.[54] As proposed by the parties in the Statement of Agreed Facts, I rely on the agreed facts with respect to the dimensions and physical features of the cells, instead of that evidence given by Mr Selisky, and on my observations at the view. Mr Selisky provided further evidence relevant to understanding the spaces to which prisoners are given access while in Exford Unit, as follows:

Exford Unit has 23 cells. Cells 1-10 and 13-23 are standard cells, while Cells 11-12 are observation cells. When it was originally opened, Exford Unit was a single building containing cells 1-15. An extension containing Cells 16-22 was later added. ...

...

Each cell has a rear door that opens to a rear yard. During the times that prisoners have access to their rear yards, the rear doors are opened and locked flush against the wall in a shroud (i.e. a casing with a sloped edge). This feature ensures that the doors do not create any potential ligature points and prevents prisoners damaging the doors.

...

In my opinion, based on my experience in managing prisoners accommodated in management units, several features of the design and construction of the rear yards are important from a prison management perspective.

Firstly, the use of individual rear yards increases prisoners' out-of-cell time. As discussed...below, prisoners generally have access to their rear yards for around 8 hours per day. In management units without individual yards, it is necessary for prison staff to escort each prisoner individually to communal exercise yards each day. This is because prisoners in management units are generally not permitted to physically mix with other prisoners, due to the risks that mixing might pose to their safety or to the security and good order of the prison. This places a limit on the amount of time that prisoners are able to spend in the communal exercise yards, because it is only physically feasible to have a certain number of yards and each prisoner in the unit has to have an opportunity to run-out each day. Prisoners on handcuff regimes may also be required to be handcuffed when travelling to and from communal exercise yards, which is an additional factor that generates resentment from prisoners. For these reasons, my experience has been that prisoners generally prefer to be in a cell with a rear yard than one in which they need to be escorted to a communal yard every day.

Secondly, the covering on the yards is necessary to reduce the risk of escape. Prisoners have access to the yards for an extended time without direct staff supervision. A general characteristic of prisoners placed in these cells is that they are at a very high risk of escape. This is one of the reasons why prisoners are placed in management units in the first place. I believe that the restrictive nature of the environment can give prisoners an additional incentive to attempt to escape, beyond that of prisoners in mainstream units. The cells and yards need to be constructed in a way that eliminates this risk.

If the yards were uncovered, I believe it would be much easier for a prisoner to escape. For example, it would be quite easy for a prisoner to fashion a grappling hook which could be used to scale the wall of the yard and escape. In my time working within CV, I have seen prisoners attempt to escape and succeed in escaping from uncovered exercise yards by climbing or scaling the side walls or fences.[55]

39 The yard covering in the yards for Cells 1, 2 and 12 in the Exford Unit involved three different layers of material. These were 'heavy duty' steel mesh, which is thick steel with openings of approximately 0.6mm x 25mm;[56] 'Crimsafe mesh', which is a finer steel mesh with smaller openings of 1.6mm x 1.6mm;[57] and a hard corrugated sheet of clear plastic which covers the two thirds of the yard not covered by an eave extending over the door to the cell.[58] Mr Selisky gave evidence about the purpose of these coverings.

(a) The steel mesh is necessary to reduce the risk of contraband such as drugs, weapons or mobile phones, entering the yard. Mr Selisky had experience, while working for Corrections Victoria, of prisoners attempting to throw contraband into other prisoner's cells or units.[59] He believed that '[i]f the yards were uncovered...it would be straightforward for prisoners to throw contraband into the yards'.[60] Mr Selisky says that prisoners in the Exford Unit could then traffic items between themselves, and prisoners from other units could throw items to prisoners in the Exford Unit. This is because the Exford Unit is close to the MRC's medical buildings and reception, and prisoners from other units are free to walk unsupervised to these buildings and may do so every day.[61]

(b) The Crimsafe mesh is necessary to reduce the risk of prisoner suicide and self-harm, which is an elevated risk for prisoners in management units. When first constructed, the rear end of the yards had vertical steel bars which could be used to attach a ligature.[62] Around 2005 or 2006, the yards were determined to be a suicide and self-harm risk and were retrofitted with the Crimsafe mesh. This same risk of use to tie a ligature arises with respect to the thick steel mesh covering in Cells 1, 2 and 12 of the Exford Unit (referred to above). Mr Selisky did not explain why the thick steel mesh remained necessary after the Crimsafe mesh was installed. He said that there is no need for Crimsafe mesh to cover Cells 16-23 in the Exford Unit as 'these coverings are higher and so do not present a potential ligature point'.[63] He also gave evidence that the Crimsafe mesh 'also helps to prevent debris (such as dead leaves) from entering the yard'.[64]

(c) The corrugated sheet of plastic utilised in some of the rear yards 'gives prisoners shelter from the weather if they want to use the yard when it is raining, and it also helps prevent rain from blowing into the cell (when the doors are locked into an open position)'.[65] Mr Selisky said that the corrugated sheet of plastic was installed in around 2005 'in response to complaints by prisoners about the inability to use the yards during bad weather'.[66]

40 Dale Slater is the General Manager of Barwon Prison and has been in that position since November 2024.[67] He has worked for Corrections Victoria since 2007, and has held various prison officer and management positions, including the role of General Manager at Marngoneet Correctional Centre.[68]

41 Mr Slater's evidence was that Barwon Prison is a maximum security men's prison accommodating some of Victoria's most high risk prisoners.[69] The Olearia Unit is a high security unit which is divided into four separate units, each of which has 10 single cells.[70] The cells in Units 2 and 3 (in which the plaintiff was placed in May 2023) have rear exercise yards attached to them with doors between the cell and the yard which are controlled by staff. The practice of prison staff is that rear doors are opened at approximately 9:30am and closed at approximately 2:30pm. Olearia Unit has 12 communal exercise yards, with Units 1 and 2 sharing exercise yards 1 to 6, and Units 3 and 4 sharing exercise yards 7 to 12.[71]

42 The Acacia Unit is also a high security unit which is divided into four separate units. The plaintiff spent time in Units 1 and 4. The cells in Unit 4 have rear exercise yards, access to which is controlled by prison staff who generally leave the doors to the rear yards open from about 10:00am to 2:00pm each day. Unit 1 has two communal exercise yards.[72]

43 The Melaleuca Unit is a high security unit with four separate units. The plaintiff was placed in Unit 4 during parts of 2024. The cells in that unit have rear exercise yards attached to them, access to which is controlled by the prison staff. There is no general period for which rear doors into the exercise yards are opened, as this is determined with the prisoner's individual Intensive Case Management Plan, subject to a minimum of one hour.[73]

44 Mr Slater also gave evidence as to the reasons for coverings over the cell yards and exercise yards, and the mesh covering at the end of the yard. These reasons, as with Mr Selisky's evidence relating to the MRC yards, related to reducing the risks of escape, of contraband being thrown into cells, and of access to ligature points.[74] Mr Slater gave evidence that the communal exercise yards had concrete walls as it was important 'to prevent contraband being passed as well as prisoners walking outside the yards from identifying which prisoners are placed in each unit, and which prisoners have been permitted to mix together'. He said that there may be a security risk arising from other prisoners ascertaining the affiliations that individual prisoners may have.[75]

45 The phrase used in s 47(1)(a), 'to be in the open air', is not defined in the Corrections Act. That section is also not the subject of any judicial authority.

46 As the plaintiff contends, the phrase is to be construed applying the ordinary principles of statutory construction to the concept of 'open air', that is, consideration of the text of the provision in light of its context and purpose.[76] Context is to be understood in the widest sense and is to be considered in the 'first instance'.[77]

47 The plaintiff refers to s 32(1) of the Charter which requires an interpretation of s 47(1)(a) which is compatible with Charter rights.[78] Section 32 states:

(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

48 The plaintiff relies on the consideration of the nature and effect of s 32(1) in Momcilovic v The Queen.[79] The Court of Appeal in Slaveski v Smith described the effect of the judgments in Momcilovic as follows:

Consequently, if the words of a statute are clear, the court must give them that meaning. If the words of a statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question.[80]

49 The plaintiff identifies s 22(1), the right relating to humane treatment when deprived of liberty, as the most relevant Charter right for the purposes of construction.[81] It provides:

All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

50 The plaintiff contends that s 47(1)(a) of the Corrections Act should be understood by reference to the s 22 right, including relevant international materials that inform the scope of the right.[82]

51 The plaintiff refers to international material including the United Nations Standard Minimum Rules for the Treatment of Prisoners ('the Mandela Rules'),[83] a report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,[84] and jurisprudence of the European Court of Human Rights. The Mandela Rules were adopted by the General Assembly of the United Nations in December 2015. They have been taken into account by this Court in ascertaining the scope of rights under the Charter.[85] Rule 23(1) of the Mandela Rules provides:

Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits.

52 The plaintiff refers to a discussion of rule 23(1) of the Mandela Rules in a work prepared for prison staff by Andrew Coyle and Helen Fair of the Institute for Criminal Policy Research at Birbeck, University of London, in cooperation with the International Committee of the Red Cross, A Human Rights Approach to Prison Management: Handbook for Prison Staff (3rd ed). The plaintiff relies on the following observation by the authors in relation to rule 23(1):

Many prisoners, in particular per-trail prisoners, spend the majority of their days indoors in conditions of relatively close confinement, with limited access to light and fresh air. In these circumstances it is essential for both physical and mental health that they should be given an adequate amount of time each day in the open air and should have the opportunity to walk about or to take other exercise.

The minimum recommended time in the fresh air is one hour each day. During this period prisoners should be able to walk about in relatively large areas and should also, if at all possible, be able to see natural growth and vegetation. The practice in some countries of placing large numbers of prisoners into small walled yards, which are in effect cells without roofs, for an hour each day does not satisfy the obligation to give the opportunity to exercise in the open air.[86]

53 There has been judicial consideration of rights of prisoners to spend time in the open air which are similarly expressed to s 47(1)(a).

54 In Whelan v Governor of Mountjoy Prison[87] Murphy J in the High Court of Ireland considered rule 32(1) of the Prison Rules 2007, which was applicable in Mountjoy Prison where the applicant was held. That rule provided:

Each prisoner not employed in outdoor work or activities shall be entitled to not less than one hour of exercise in the open air each day, provided that, having regard to the weather on the day concerned, that is practicable.

55 The applicant was held in a Challenging Behaviour Unit, and locked in his cell 23 hours a day, and permitted for one hour a day to access a space that was described by Murphy J, from the photographs which were in evidence, as follows:

These photographs show what is, in effect, a large lean-to shed, the back wall of which is brick and the remaining three walls of which are constructed of sheet metal. The top portion of the sheet metal walls consists of steel mesh which allows in some light and air. The meshed portion is well above head height and from the photographs supplied appears to cover the top quarter of the 19 ft outer wall. Thus it is well above the head height of individuals using the area. The meshed area on the side walls of the shed is less than that on the outer wall. The entire structure is covered by a steel sloping roof which extends from the brick wall out beyond the outer steel wall. There appear to be four lights on the central trusses supporting the steel roof, suggestive of the fact that the area needs illumination, at least part of the time.[88]

56 Justice Murphy held that access to this space did not constitute being 'in the open air':

The Court is satisfied, as a matter of fact, that this exercise area is not in the open air. The entire area is enclosed, with some light and air admitted through the top meshed part of the structure. If this is open air, then a cell which has bars which admit light and air would similarly be in the open air. This structure in fact resembles a large holding cell.[89]

57 The Court made the observation that '[a] person is in the open air when he/she can look up and see the sky and have the sun in his eyes or feel the rain on her face'.[90]

58 In the Australian Capital Territory, the Corrections Management Act 2007 (ACT) provides for prisoners to have 'access to the open air' in ss 12 and 45, as follows:

12 Correctional centres - minimum living conditions

(1) To protect the human rights of detainees at correctional centres, the director-general must ensure, as far as practicable, that conditions at correctional centres meet at least the following minimum standards:

(e) detainees must have reasonable access to the open air and exercise;

...

45 Access to open air and exercise

(1) The director-general must ensure, as far as practicable, that detainees -

(a) have access to the open air for at least 1 hour each day; and

(2) The standards under subsection (1) may both be satisfied during the same hour on any day.

(3) For chapter 10 (Discipline), this section is taken to provide an entitlement for each detainee in relation to access to the open air and exercise.

59 Section 19(1) of the Human Rights Act 2004 (ACT) contains a right to humane treatment when deprived of liberty in substantially the same terms as s 22(1) of the Charter.[91]

60 These provisions were considered in Davidson v Director-General, Justice and Community Safety Directorate.[92] The plaintiff in that case had been held in a management cell with a rear courtyard attached to his cell. There were periods of his detention during which he was not permitted to access other exercise yards and was limited to accessing the courtyard attached to his cell. The issue was whether this constituted 'access to the open air' for the purposes of the Corrections Management Act.

61 Justice Loukas-Karlsson considered international standards and the Irish case of Whelan and held:

A space that gives a detainee the impression of being outdoors in that it does not give the impression of being indoors, will be a space that constitutes being in "the open air". In my view, the impression of being outdoors is realised through the provision of a spacious area with free flow of fresh or open air, ample natural light, a clear view of the sky, exposure to the natural elements and preferably, a view of vegetation.[93]

62 Her Honour heard evidence about the cell yard and also conducted a view. Her Honour concluded that the yard did not meet the requirement of 'access to the open air':

Having inspected the Management Unit, I find that the rear courtyard gives the impression of being indoors and specifically, of being in a cell. There are four brick walls, covered by a narrow mesh ceiling. The mesh ceiling undeniably obstructs a clear view of the sky and thereby impedes natural light from the sun. There was no crossflow of air and one could not feel the wind flowing through the space, in contrast to the general exercise yard. In respect of the observation window on the rear door, it was a narrow window and does not enable a detainee to see out in more than a limited way.[94]

Conclusion as to the meaning of 'in the open air' and the scope of s 47(1)(a)

63 Commencing with the text of s 47(1)(a), there are several elements of the words of the subsection which provide some guidance on the scope of 'the right to be in the open air for at least an hour each day'.

(a) The first is that the right applies if the prisoner is 'not ordinarily engaged in outdoor work'. This suggests that the concept of being 'outdoor[s]' for the purpose of work is regarded as an alternative for being 'in the open air'. That supports a conclusion that the objective is to have access to a space which is outside of the indoor cell environment.

(b) The second is that the right is qualified by the phrase 'if the weather permits'. If access to the right is qualified by reference to weather conditions, it is necessarily implicit that the situation of being 'in the open air' entails being exposed to prevailing weather conditions such as rain, hail and wind (conditions which may potentially engage the consideration of 'if the weather permits'), as well as sun and breezes.

(c) The third is that the right is 'to be in the open air'. It is not to have access to the open air, or to be exposed to the open air. It involves being 'in' a situation which is the 'open air'.

64 The above considerations arising from the words of s 47(1)(a) must be understood in the broader context of the Corrections Act. The right in s 47(1)(a) is an entitlement that arises in the context of a prison, which will have walls and enclosed spaces to ensure the secure custody of the prisoners held there, and which will necessarily provide limits on the extent to which any space within a prison can be regarded as being 'in the open air' in the fullest sense of the ordinary meaning of that expression. In their ordinary usage, the expressions 'open air' or 'outdoors' can import a sense of being in an open, natural environment, away from confining structures. The Macquarie Dictionary defines the phrase 'open air' as 'the unconfined atmosphere; outdoor air'.[95] Plainly, in a prison context, a right to be 'in the open air' does not mean being in an unconfined atmosphere, and the sense of being in an unconfined environment must be a relative concept, having regard to the fact that the prisoner will remain confined by the broader prison walls and security features.

65 The right in s 47(1)(a) applies to all prisoners, classified across a range of degrees of security.[96] It must, therefore, be capable of applying to prisoners held in each of the prisons, including maximum security facilities such as Barwon Prison and the MRC, as well as minimum security facilities. Maximum security prisons will have a very high degree of security and enclosure, within which the right to an hour of being in the open air must be accommodated.

66 A further contextual consideration is the purpose of the Corrections Act in providing for 'the establishment management and security of prisons and the welfare of prisoners'.[97] Subsection 47(1)(a) is a right plainly directed to the welfare of prisoners. Having a minimum amount of time in the open air furthers the physical and mental well-being of prisoners who may otherwise be confined for long periods to their cells.

67 Subsection 47(1)(a) does not refer to exercise (unlike the ACT legislation, or rule 23(2) of the Mandela Rules).[98] I do not, therefore, accept the submission of the plaintiff, relying on the international jurisprudence, emphasises the need for the space to provide exercise facilities.[99] I also note the submissions of the plaintiff that there must be a 'horizontal aspect' or horizontal view to the space for it to constitute 'open air'.[100] This is a difficult concept to apply, not only because it is not part of the text of s 47(1)(a), but because the 'open air' referred to in that subsection must necessarily encompass a curtailed horizontal view or aspect given that it will be within a prison, which in the case of a maximum security prison, will have high walls limiting the horizontal view. The extent to which any horizontal aspect is required will be a matter of degree. A view out of the space for some distance may enhance the feeling of being in the open air, even if that area outside the yard is not accessible. The size of the yard space will, however, be directly relevant. For a space to constitute the open air within the meaning of s 47(1)(a), and to serve the welfare purpose of that right, it must be of a sufficient size to permit some exercise or walking around in a way which is not possible in indoors, in the prisoner's cell. A space that is barely larger than a prisoner's cell is unlikely to satisfy the implicit requirement of the space being an 'open air' space enabling movement and a sense of being outdoors..

68 I also have had regard to the plaintiff's reference to commentators' observations on rule 23(1) of the Mandela Rules, with respect to an outlook onto vegetation.[101] I do not accept that the right to 'be in the open air' entails any requirement that the prisoner should 'be able to see natural growth and vegetation'.[102] There is nothing in the text of rule 23(1) that imports such a requirement. There is also nothing in the phrase 'in the open air', as used in s 47(1)(a), construed in the context of a prison, that necessarily involves an ability to see natural growth or vegetation.[103]

69 That said, it is relevant that an ability to see natural growth or vegetation is likely to enhance a prisoner's sense of being outdoors and out of the cell environment, and thus enhance the sense of being 'in the open air'. A view from an enclosed yard to grass, trees or other vegetation would also be desirable to serve the mental health objectives of the s 47(1)(a) right. The difference between some of the rear yards seen on the view of the MRC and Barwon Prison which had an outlook onto a concrete wall, covered pathway or an enclosed sallyport, and those which had a view onto grass and a limited garden, was notable. Further, even if yards are to some degree open by reason of roof coverings of mesh or another material relatively open to the sun and other weather, if the yards are incorporated into broader enclosed spaces it may restrict the degree to which sun or wind or other elements of the weather reach the yard and enable it to be properly considered a space which is 'in the open air'.

70 There is no clear bright line delineating what will constitute a space which enables a prisoner to 'be in the open air'. It is to a significant degree an evaluative exercise having regard to factors including whether the space permits access to the sun, rain, wind and other aspects of the prevailing weather; and whether it otherwise provides a sense of being exposed to the weather and in the open air. Matters such as whether there is an ability to look out to more open space, or vegetation, and the extent to which it is possible to move around in the space to exercise will also be relevant to whether a space enables a prisoner to be 'in the open air'.

Whether particular yards allow for time 'in the open air'

71 The rear yards of cells 1, 2 and 12 in the Exford Unit of the MRC are of essentially the same dimensions, 4.165m in length by 2.85m in width. One wall of the yard is the concrete outer wall of the cell, and all the side walls are concrete. The end of the yard is covered with vertical steel bars and a covering of Crimsafe mesh. A concrete path covered by a metal awning, and a small grassed area are visible outside the yard, and a concrete wall is beyond that grassed area. The yard to cell 12 looks out at the same concrete path, a larger grassed area and the concrete wall.

72 The yards are covered by a roof consisting of a layer of Crimsafe mesh and heavy duty expanded steel mesh. While the mesh would permit some rain, and to a lesser extent sun,[104] to enter, the yard is covered by a concrete eave which extends about a third of the way into the yard, and the other two thirds are covered by heavy corrugated plastic installed above the layers of metal mesh. The plastic may have been clear when installed, but had become somewhat opaque and had dirt or leaf debris on it in parts. There is a vertical gap of about a metre between where the eave ends and the plastic starts at a slightly higher level. This gap remains covered by the mesh layers below it.

73 These yards are almost fully enclosed, including from above. The three layers of covering on the roof - the Crimsafe mesh, the heavy duty expanded steel mesh and the heavy corrugated plastic - have the consequence that in combination with the concreate eave extending over the back door of the cell, the roof is entirely covered and there is no exposure to the open air above. There is no possibility of feeling the rain falling, and the three combined layers have the consequence that there is no sensation of being exposed to the sun. The view was conducted on a day when there was intermittent sun between clouds and light breezes. When the sun came out, it could be felt and seen from the grassed area directly outside the yards, and also observed from inside the yard, but it could not be felt in the cell rear yards other than to a very limited extent when standing at the wall of bars and mesh leading onto the grassed area. Although that situation may be different at other times of day or with different amounts of cloud in the sky, I take into account the agreed facts that the Crimsafe mesh installed in the cells appears to be intended to reduce sunlight and heat, in that it 'reduces solar heat gain by up to 53%', 'filters up to 62% of UV radiation', and 'reduces visible light by up to 55%'.[105] Debris on the plastic sheeting, and the metal awning over the footpath directly outside the yards, also have the effect of blocking some sunlight. I am satisfied that the degree to which the sun and daylight can be seen or felt in the yards would not be materially different over time from my observations on the day of the view.

74 The breezes on the day of the view also were not evident in the yards. Again, this is unlikely to be a feature that changes materially depending on the weather, as Crimsafe mesh is designed to block up to 47% of the airflow[106] and the plastic sheeting would have the effect of blocking most remaining wind or breeze.

75 There was no visible or tangible sensation of being outside or in the open air in these yards. Access to the yard of cells 1, 2 and 12 of the Exford Unit at the MRC does not constitute being 'in the open air' within the meaning of s 47(1)(a).

76 Cell 23 in the Exford Unit is approximately 3.9m in length and 2.85m wide. The wall of one end of the yard is the concrete wall of the cell, with a door and a window into the cell. The side walls are concrete. The end of the yard has vertical steel bars with a covering of Crimsafe mesh. The roof of the yard is covered by a layer of steel mesh made from wire which is approximately 4mm thick and has openings of approximately 70mm by 12.5mm. There is no additional covering of plastic or Crimsafe mesh. The height of the roof covering is higher than cells 1, 2 and 12, at about 3.9m.[107] There is also a concrete overhang of approximately 1.3m between the cell door and the yard. Immediately outside the yard, there is a covered walkway that is approximately 3.04m wide, and beyond it, a concrete wall. The walkway is covered by a steel roof, with some openings along the sides covered by steel mesh only, at about the same level as the mesh on the roof of the yard.[108]

77 There is a fluorescent wall light on one side wall which remains on 24 hours a day. There was no exercise or other equipment in the yard.[109]

78 More sunlight reached the yard through the roof of the yard to cell 23, and there was some limited feeling of openness to the sky, both because of the height of the roof and the use of a single layer of steel mesh. However, unlike the yards of cells 1, 2 and 12 which backed onto a small open grassed area, and permitted some limited perception of openness, this yard backed onto a covered walkway and a concrete wall so that there was no exposure to any outside space through the back end of the yard.

79 The yard felt enclosed, with limited room to move around and the only view to the outdoors being to the sky above the yard through the mesh on the cell's roof. There was no sense of being outside or in an open space.

80 Access to the yard of cell 23 of the Exford Unit at the MRC does not constitute being 'in the open air' within the meaning of s 47(1)(a).

81 The features of the rear yards of Unit 2, cell 12 and Unit 3, cell 29 in the Olearia Unit were the same other than that the length of the yard in Unit 2, cell 12 is 4.32m, and Unit 3, cell 29 yard is slightly smaller at approximately 4.26m long. Both are approximately 2.7m wide.[110]

82 The side walls of the yards are concrete, as is the wall where the yard adjoins the cell. At the end of the yard, opposite the cell, there are nine panels akin to windows, eight covered with vertical steel bars with a covering of Crimsafe mesh, but one covered with metal.[111] Outside that end of the yard there is an uncovered walkway about 3.8m wide before a concrete wall.[112] An expanse of sky is visible above the concrete wall.

83 The yards are covered by a single layer of steel mesh made from wire which is approximately 4mm thick with openings of approximately 75mm by 12.5mm. There is an eave extending over the door between the cell and the yard. Under the eave is a fluorescent light which is turned on 24 hours a day. There is nothing else in the yard.[113]

84 These yards give some feeling of openness to the sky, given the high ceiling and single layer of mesh. Sun can enter through the roof and, to a limited extent, through the bars and mesh of the end of the yard, because there is no roof over the space immediately outside the yard. There is, due to the more open space outside the yard, in combination with the high roof and single layer of mesh, a greater sense of access to the open air and the weather conditions.

85 When the doors to the yards are closed, they remain spaces which feel enclosed by walls. There is limited room to move around and the space does not convey any strong sense of being 'outside', as opposed to inside an enclosed structure. Although the end of the yards is covered only by bars and Crimsafe mesh, and it is possible to see the sky outside the cell, the yards remain bounded by concrete walls in close proximity.

86 These yards present a more difficult evaluative task than those in the Exford Unit at the MRC. The Olearia Unit yards give more of a sense of access to the open air than the yards in the Exford Unit, and being in them would feel different to being inside a fully enclosed cell. However, they did not give the sense of being in the open air.

87 Access to the yards of Unit 2, cell 12 and Unit 3, cell 29 in the Olearia Unit at Barwon Prison does not constitute being 'in the open air' within the meaning of s 47(1)(a) of the Corrections Act.

88 The exercise yards 1 to 12 in the Olearia Unit are very similar in features. They are approximately 8.75m by 5.98m and have a floor area of approximately 52.33m2. The yards have four concrete walls, one of which has the door from the unit. A concrete roof extends over the door from the unit into the yard for about 5.55m, leaving an area of approximately 5.98m wide and 3.2m long which is covered only by a layer of steel mesh. The mesh is made from wire which is approximately 4mm thick with openings of approximately 75mm by 12.5mm. In each yard there is a table, seats, a toilet and exercise equipment.[114]

89 Exercise yards 3, 4, 9 and 10 have a window covered in steel bars at the end wall. There are two small grates along the length of the window that are covered in steel mesh with small holes, which can be opened or closed with a dial. When in the open position, it is possible for some air to flow through the holes.[115] The windows looked out to grassed areas, pathways, other buildings of the prison and the prison walls were visible in the middle distance.

90 In these larger yards with a larger area of the roof open (subject to the wire mesh) to the sky, there was a sense of being exposed to the sun and the weather. At the view I felt the warmth of the sun coming into the yard, which was visible in the brightness and shadows it cast, and felt breezes. I could hear sounds of birds and other sounds associated with being outside, such as airplanes and the sound of wind. In the yards with windows, I could see birds in the grassed areas. The concrete walls did give a sense of being enclosed, but the greater view of the sky and openness to the weather did give a feeling of being in a space which was open to the outside air. That feeling was enhanced in the yards with windows where it was possible to see to the middle distance and in particular to see grass and vegetation.

91 These exercise yards retain features of being enclosed. However, the exposure to the weather and outside air, the ability to feel the sun and the wind and rain if there is any, the space to move around and the ability to exercise meaningfully in the space constitute features which, in my opinion, are implicit in the concept of 'being in the open air' in s 47(1)(a). Although the degree to which the spaces remain significantly enclosed makes the evaluation of these spaces as being in the open air difficult, I have concluded the spaces do constitute spaces 'in the open air' for the purposes of s 47(1)(a). This is because the concept of 'in the open air' must be construed in the context of prisons, which have walls and other security features to keep prisoners inside, and are necessarily not completely open to the outdoors.

92 Being in the exercise yards 1 to 12 in the Olearia Unit at Barwon Prison constitutes being 'in the open air' within the meaning of s 47(1)(a) of the Corrections Act.

93 The cells in which the plaintiff was held in the Melaleuca Unit at Barwon Prison were Loss of Privilege Cells 1 and 2 and the Observation Cell. The rear yards are approximately 5.395m in length, 3m in width and 16.19m2 in area.[116] The wall between the yard and the cell is concrete, with a window and door into the cell, and the side walls are concrete.

94 The rear end of the yards has a steel frame with vertical and horizontal bars which is covered with clear Perspex panels, and a steel framed gate covered with Perspex. The cell yard gate opens into a small enclosed area approximately 1.3m wide, which is enclosed by concrete walls on the sides and a steel mesh wall at the end. The mesh has holes of approximately 75mm in diameter and 20mm apart. There is also a vinyl, completely opaque, retractable blind which can be lowered over this outer wall in addition to the steel mesh.[117] That blind is controlled by unit staff. There is a gate outside this external mesh wall, which leads out to the sallyport of the unit, which is covered by solid roof and enclosed by walls. The distance to the sallyport wall from the rear end of Loss of Privilege cell 1 yard is around 9m and slightly less for the rear yards of Loss of Privilege cell 2 and the Observation Cell.[118] Outside the outer yard wall of mesh, there is a space between the enclosed roof of the sallyport and the top of the yard which is enclosed by steel bars and vertical wires rather than a solid wall.

95 The roof of the cell yard is covered with steel mesh. The mesh is made from wire which is approximately 3mm thick with openings of approximately 10mm by 80mm. There is a concrete eave of about a metre extending over the cell door. On the wall above the door, there is a fluorescent light facing the yard which is turned on 24 hours a day. There is nothing else in the yard.[119]

96 These yards do let in some sunlight and rain from that part of the roof area which is exposed and covered only by mesh. There is little potential for sunlight to enter from the end of the cell given that the yard backs onto the enclosed sallyport. There is also little prospect of feeling the wind or other weather from that direction. There was no sensation of being exposed to the weather or outdoor areas evident during the view. The construction of the yards, with the double sets of bars at the end (first covered in Perspex, and the second with steel mesh), creates a strong feeling of being enclosed. The sense of enclosure would be materially exacerbated when the vinyl blinds are pulled down. The yards are small, with little room or facility to exercise. The fact that the area outside the cell is the enclosed sallyport means that there is no real feeling of being outdoors or outside.

97 Access to the rear yards of Melaleuca Unit Loss of Privilege cells 1 and 2 and the Observation Cell at Barwon Prison does not constitute being 'in the open air' within the meaning of s 47(1)(a) of the Corrections Act.

98 The cells in which the plaintiff was held in the Acacia Unit were cells 21, 23 and 24 of Unit 4.

99 The yards of these cells have essentially the same features. They are approximately 8.05m in length, 2.53m in width, and have a floor area of approximately 20.37m2. Cell 23 is slightly smaller being approximately 2.47m in width. The walls of the yard are brick, with one wall being the wall between the yard and the cell which has a window and door into the cell. The rear wall of the yard is a steel sheet, with holes punched in it and a covering of clear Perspex. The holes in the steel sheet are approximately 75mm in diameter and 20mm apart.[120] The rear yard of cell 23 had an exercise bike in it.

100 The rear of the yard opens to a small space which is 1.905m deep and is walled in by another steel sheet punched with holes. That wall has a gate out to a fully enclosed staff walkway approximately 1.4m wide, and then a solid steel fence. The walkway is covered with clear corrugated plastic.[121]

101 The yard is covered both by a concrete eave of about 1.5m from the cell wall and a concrete ceiling over the last two metres of the yard, which extends over the space between the steel yard wall and the second wall and gate beyond before the walkway. Between these two elements of concrete ceiling there is an arched steel sheet with fine holes punched in it. The arch (and the side brick walls) extends very high, with the rear wall and the concrete ceiling over the ending significantly lower than the arch. This enables light to come through the arch where it rises above the top of the steel wall at the end of the yard.

102 These yards are small and despite the arch extending quite high over the yard, there is a feeling of being very closed in created by the brick walls and the two layers of steel wall at the end of the yard, with the solid steel fence just under 2m away at the other side of the covered walkway. Although sunlight transmits through the steel in the arch over the yard, the height of the walls and the enclosed nature of the rear of the yard has the consequence that there is little feeling of exposure to the weather or to any outside area. The steel is more dense than some of the mesh and does limit the extent to which the sun comes through. The structure of the walls and surrounding structures also meant that much of the yard was in shade. The yards felt very enclosed and small, and provided little space for exercise and no real impression of being in a space open to the weather or the open air.

103 Access to the rear yards of Acacia Unit 4 Cells 21, 23 and 24 at Barwon Prison does not constitute being 'in the open air' within the meaning of s 47(1)(a) of the Corrections Act.

104 There are two exercise yards to which the plaintiff had access in the Acacia Unit in Barwon Prison, yards 1 and 2.

105 Exercise yard 1 is of irregular shape and has a floor area of approximately 179.15m2. The yard adjoins a common area inside the unit. Three of the walls of the yard are brick, and one has a window and door into the common area. The fourth wall is solid steel. In front of one of the brick walls there is a storage cage area to which the prisoners do not have access. The yard is covered by a layer of steel mesh supported by steel sleepers. The steel mesh is composed of a thick wire crossed at intervals of about 70mm by 80mm (in a fairly open square hatched pattern). Above that there is a fine net across the roof.

106 There is a boxing bag, a chin up bar and a toilet, and a telephone attached to one of the walls.

107 The yard is enclosed by four walls, but its size and the degree to which the top of the yard feels open to the sky gives a sense of being in a significantly more open space than the rear yards to the cells. At the time of the view, it was possible to see the open sky and feel the sun falling onto about half of the yard, to feel and hear the wind, and to hear some birds outside. There was space to move around and to exercise.

108 Although the space is enclosed by walls on all sides, it does enable exposure to and experience of the prevailing weather, and sufficient space to do some kinds of exercise. The degree to which the space was open provided a strong contrast to the inside areas in the Acacia Unit.

109 Being in exercise yard 1 in the Acacia Unit at Barwon Prison constitutes being 'in the open air' within the meaning of s 47(1)(a) of the Corrections Act.

110 Exercise yard 2 is approximately 9.575m long and 9.567m wide, with a floor area of approximately 91.6m2, part of which is taken up by a caged storage area to which the prisoners do not have access. The walls are partly or fully constructed of brick. One of the walls has steel framed windows and a door into the inside day room and kitchen area. One of the brick walls has the storage cage over part of it. Another wall has an extensive panel covering around 75% of the wall of a steel sheet with holes punched in it. The holes are approximately 75mm in diameter and 20mm apart. Behind the sheet is a glass panel. One part of the sheet is transparent to the outside, and one part is a mirror. The fourth wall also has two large panels of the same steel with holes punched in it. Behind that sheet on the outside of the yard is a panel of translucent plastic, and on the inside is a second steel sheet with holes punched in it. Light was transmitting through these sheets of metal, apparently from an unenclosed area outside, but it was not possible to see clearly through them. [122]

111 The yard is covered by a steel sheet or mesh. Around one third of the yard was covered by a steel roof across one corner of the yard, above some exercise equipment. The exercise equipment included fixed weights, resistance equipment and a boxing bag. There was also a toilet and a telephone.[123]

112 The steel mesh covering the yard let in a large amount of sunlight and a view of the sky. It was possible to feel and hear breezes and would permit rain through if it was raining. The view into the inside day room and the gym equipment outside gave a feeling that the yard was a contrasting outdoor space. It had space and equipment for exercise.

113 I conclude that being in exercise yard 2 in the Acacia Unit at Barwon Prison constitutes being 'in the open air' within the meaning of s 47(1)(a) of the Corrections Act.

Strip searches and the requirement to permit private dressing following a search

114 The plaintiff gave evidence in his first affidavit that since September 2016, the process by which he was strip searched (which he describes as 'consistent over the years') was that prison staff had watched him while he got dressed after each search, and he was not allowed to dress privately.[124] He gave evidence estimating that he had been strip searched 'several hundred times' since September 2016, and that he had been strip searched at least once per week since May 2023.[125] The defendants filed evidence of strip search records which were incomplete, but did show that the plaintiff had been strip searched on numerous occasions.[126]

115 The plaintiff sought the following declarations related to the strip searches in his Further Amended Originating Motion:

[O]n each occasion since May 2023 that the plaintiff was strip searched, the defendants (including through their employees, agents or officers) did not comply with regulation 86(2)(e) of the Corrections Regulations 2019 (Vic) by not allowing the plaintiff to dress in private immediately after being strip searched, and thereby acted unlawfully.

[O]n each occasion that the defendants (including through their employees, agents or officers) did not comply with regulation 86(2)(e), as identified in prayer (c) above, the defendants have acted incompatibility with the plaintiff's human rights in sections 10(b) and 22(1) of the Charter, contrary to section 38(1) of the Charter, and thereby acted unlawfully.[127]

116 On 15 September 2025, the first day of the hearing, the parties provided signed minutes of proposed consent orders and a Joint Memorandum Explaining Legal Basis for Proposed Consent Orders. The defendants admit that the plaintiff's strip search allegations are established, but do not admit that the strip searches occurred with the frequency described in the plaintiff's evidence.[128] The second and third defendants gave evidence in their affidavits that strip search policies are in place at Barwon Prison and the MRC, and that they were not aware of instances of non-compliance with the policies.[129] The plaintiff filed an affidavit in reply in which he maintained his position that he was not permitted to dress privately after strip searches and identified 11 December 2023 and 17, 29 and 30 June 2025 as dates on which he had been strip searched and not permitted to dress privately.[130] The defendants made further enquiries and ascertained that on 17 June and 30 June 2025, the plaintiff had been strip searched and the officers involved in the strip search had not left the room while the plaintiff was getting dressed after the search. On that basis the defendants determined that the plaintiff's allegation as to strip searching was established, except with respect to the frequency of searching, which they were not in a position to concede.[131]

117 The declarations consented to by the parties are based on, but not identical to, the declarations sought by the plaintiff. They are in the following terms:

The Court declares that, on each occasion between 2 May 2023 and 30 June 2025 that the plaintiff was strip searched, the plaintiff was not allowed to dress in private immediately after the strip search was finished, in breach of regulation 86(2)(e) of the Corrections Regulations 2019 (Vic).

The Court declares that the failure to allow the plaintiff to dress in private on each occasion identified in [the] paragraph ... above was incompatible with his right to privacy under s 13(a) of the Charter of Human Rights and Responsibilities (Charter), and his right to humane treatment when deprived of liberty under s 22(1) of the Charter, in breach of s 38(1) of the Charter.[132]

118 It is necessary, notwithstanding the parties' consent to the making of these declarations, that I satisfy myself of the appropriateness of the grant of declaratory relief.

119 Section 45(1) of the Corrections Act permits searches, including random searches, of persons in prisons, including prisoners and of any part of a prison. It relevantly provides:

(1) The Governor of a prison may for the security or good order of the prison or the prisoners at any time order a prison officer to -

(b) search and examine any person in the prison other than a judge of the Supreme Court or County Court, or a magistrate; or

(c) search and examine any thing in the prison; or

(d) as well as the formal search required by section 44, require a person wishing to enter a prison (other than a judge of the Supreme Court or County Court or a magistrate) to submit to search and examination of the person and of any thing in the person's possession or under the person's control; or

(e) conduct any search under paragraph (a), (b), (c) or (d) at random.

120 The Regulations make further provision as to how such searches must be conducted. Regulation 85 provides that under s 45 of the Corrections Act, a search may occur in the form of a garment search, pat-down search, scanning search or strip search.

121 At the relevant times, reg 86(2) of the Regulations imposed requirements for strip searches. It stated:

86 Strip searches of prisoners - general requirements

...

(2) Prison officers conducting a strip search of a prisoner must ensure that -

(a) the strip search is conducted as expeditiously as possible to minimise the impact on the prisoner's dignity and self-respect; and

(b) any unnecessary force is avoided; and

(c) the strip search is conducted in a private place or an area that -

(i) provides reasonable privacy for the prisoner being searched; and

(ii) is only in the presence or sight of a person who is necessary to ensure the safety of prison officers conducting the strip search and the prisoner being searched; and

(d) subject to section 23(2) of the Act, the strip search does not involve the touching of the prisoner's body; and

(e) the prisoner is allowed to dress in private immediately after the strip search is finished; and

(f) if the prisoner's clothing is seized during a strip search, the prisoner is provided with appropriate clothing to wear after the strip search is finished; and

(g) subject to subregulations (3) and (4), the prisoner is searched by prison officers -

(i) if the prisoner identifies as being of a particular gender, of that gender; or

(ii) if the prisoner requests that the prison officers be of a different gender, of that different gender.

122 It is established that prison officers, including those at the MRC and Barwon Prison who conducted strip searches of the plaintiff, are public authorities within the meaning of s 4(1) of the Charter. Section 38(1) of the Charter makes it unlawful for a public authority to act in a way that is incompatible with a human right or in making a decision to fail to give proper consideration to a human right.

123 Two Charter rights may be engaged by the conduct of a strip search. First, people have the right in s 13(a) of the Charter not to have their privacy unlawfully or arbitrarily interfered with. Secondly, s 22(1) of the Charter confers the 'dignity right', as follows:

All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

124 A strip search will be an interference with a prisoner's privacy. However, if a strip search is conducted in accordance with the condition in s 45 of the Corrections Act that it be for the security or good order of the prison or the prisoners, it would not be an 'arbitrary' interference with the prisoner's rights, as there is a rational reason for the search.[133] The strip search must also be compliant with the requirements in reg 86, including reg 86(2)(a), if it is not to be an 'unlawful' interference with the prisoner's privacy right.

125 The right to humane treatment when deprived of liberty in s 22(1) of the Charter is also, in my view, engaged by the conduct of strip searches on prisoners. Strip searching is a process which involves searching a prisoner while naked, and includes searching of body cavities. It involves a significant intrusion on the ordinary right to be free of any interference with the person. It may be an affront to a person's dignity. It goes beyond the necessary features of the deprivation of liberty to which a prisoner is subject by reason of the sentence of imprisonment.[134]

126 There are strong practical reasons for the statutory authorisation of strip searches, and equally, there are important reasons why the conduct of strip searches is the subject of detailed regulation. It is essential that these legal limitations on strip searching be observed.

127 It is established that a limitation is not capable of meeting the requirements of s 7(2) of the Charter, and thus constituting a reasonable and justifiable limit on a human right, if the limitation is unlawful.[135] Non-compliance with regulations relating to the conduct of a strip search would have the consequence that it will not be possible to establish that the strip search is a reasonable and demonstrably justified limitation on a human right.

Non-compliance with regulation 86(2)(e)

128 It is clear that there have been at least some instances of non-compliance with reg 86(2)(e) when the plaintiff has been strip searched. I accept that there has been non-compliance on more than the two occasions that the defendants have been able to identify. It is not possible to determine the number of occasions on which non-compliant searching has occurred, given that the plaintiff himself is (understandably) unable to quantify the number of occasions on which he has been searched.

129 The defendants' evidence in relation to strip searches is also incomplete. I accept the evidence of Mr Selisky and Mr Slater that it is rare for prison officers not to comply with Corrections Victoria and prison based policies, and that as far as they were aware, the plaintiff was strip searched in accordance with those policies.[136] However, some of the policies exhibited to their affidavits[137] do not include any reference to the requirement that prisoners be permitted to dress in private immediately after the strip search is finished, nor do some policies even refer to reg 86. The Commissioner's Requirement on Strip Searches in Prisons does refer to reg 86, and the standard form Prisoner Strip Search Register and checklist, which is attached to the Commissioner's Requirement, also refers specifically to the requirement that a prisoner be permitted to dress privately after a strip search. However, the Local Operating Procedures for the MRC[138] and Barwon Prison[139] do not refer to this requirement, nor to reg 86 more generally.

130 The incomplete Strip Search Registers also do not enable a conclusion as to how frequently the searches have occurred.

131 In these circumstances, it is understandable and appropriate that the parties have agreed upon declarations that do not seek to enumerate the occasions on which the plaintiff has been strip searched without compliance with reg 86(2)(e). It is unnecessary and inappropriate in these circumstances to make findings as to the frequency with which this has occurred. I am, however, satisfied that it is appropriate to make the declarations in the terms agreed by the parties in the Minutes of Proposed Consent Orders.

1. The Court declares that, on each occasion between 2 May 2023 and 30 June 2025 that the plaintiff was strip searched, the plaintiff was not allowed to dress in private immediately after the strip search was finished, in breach of reg 86(2)(e) of the Corrections Regulations 2019 (Vic).
2. The Court declares that the failures to allow the plaintiff to dress in private referred to in paragraph 1 above were incompatible with his right to privacy under s 13(a) of the Charter of Human Rights and Responsibilities (Charter), and his right to humane treatment when deprived of liberty under s 22(1) of the Charter, in breach of s 38(1) of the Charter.

133 I will hear the parties on the form of the declarations on the s 47(1)(a) issue, and reserve the question of costs until the adjourned proceedings are completed.

A. Rear yards in Exford Unit, Metropolitan Remand Centre

Cell 1

1. The rear yard for Cell 1 has a floor area of 11.87m2.

1.1 The length of the yard is 4.165m.

1.2 The width of the yard is 2.85m.

1. The front end of the yard is concrete, with a window into the cell, a door that connects the cell and the yard, and a shroud (i.e. a casing with a sloped edge) that allows the door to be opened and locked flush against the wall.

3. The side walls are concrete.

1. The rear end of the yard has vertical steel bars, with a covering of 'Crimsafe' steel mesh.

2. The yard faces north north-west and looks onto a footpath, a small grass area and a concrete wall.

3. The footpath is covered by a steel sheet at the height approximately of the roof of the rear yard. On the sheet, facing downwards, is a rectangular fluorescent light that is turned on 24 hours a day.

7. The yard is covered by three layers:

7.1 There are two layers of mesh: a layer of Crimsafe mesh; and above that a layer of "heavy duty expanded steel mesh" which has openings measuring approximately 0.6mm x 25mm.

7.2 Above the top-layer of steel mesh:

(a) there is an eave extending over the door between the cell and the yard which is approximately 1.4m long (approximately one-third of the floor area of the yard).

(b) the remaining approximately two-thirds of the floor area is covered by a corrugated sheet of clear plastic.

8. There is a bench in a corner of the yard for the prisoner to sit or lie on.

Cells 2 and 12

9. The rear yards for Cells 2 and 12 are essentially the same as for Cell 1.

1. Cell 2 looks at the same pathway, small grass area and concrete wall as Cell 1.

11. Cell 12 looks at the same pathway, a larger grass area and a wall.

Cell 23

12. The rear yard for Cell 23 has a floor area of 11.11m2.

12.1 The length of the yard is approximately 3.9m.

12.2 The width of the yard is approximately 2.85m.

1. The front end of the yard is concrete, with a window into the cell, a door that connects the cell and the yard, and a shroud that allows the door to be opened and locked flush against the wall.

14. The side walls are concrete.

1. The rear end of the yard has vertical steel bars, with a covering of Crimsafe mesh.

2. The yard faces north north-east and looks onto a covered walkway which is approximately 3.04m wide.

16.1 The roof of the walkway is approximately the same height as the height of the mesh within the yard, and is made of steel.

16.2 Beyond the walkway is a concrete wall.

1. The yard is covered by a layer of steel mesh made from approximately 4mm thick wire with openings of approximately 70mm x 12.5mm at a height of approximately 4m.

2. There is a concrete overhang over the door between the cell and the yard, which is approximately 1.3m long.

3. There is a fluorescent light on the right side wall (facing the rear of the cell), which remains on 24 hours a day. There is nothing else in the yard.

B. Rear yards in Olearia Unit, Barwon Prison

Unit 2, Cell 12

1. The rear yard for Unit 2, Cell 12 has a floor area of approximately 11.66m2.

20.1 The length of the yard is approximately 4.32m.

20.2 The width of the yard is approximately 2.70m.

1. The front end of the yard is concrete, with a window into the cell, a door that connects the cell and the yard, and a shroud that allows the door to be opened and locked flush against the wall.

22. The side walls are concrete.

1. The rear end of the yard has vertical steel bars, with a covering of Crimsafe mesh.
2. The yard faces north and looks onto an uncovered walkway approximately 3.8m wide and then a concrete wall.
3. The yard is covered by a layer of steel mesh made from approximately 4mm thick wire with openings of approximately 75mm x 12.5mm.

26. There is an eave extending over the door between the cell and the yard. On the eave, facing downwards, is a rectangular fluorescent light, that is turned on 24 hours a day. There is nothing else in the yard.

Unit 3, Cell 29

1. The rear yard for Unit 3, Cell 29 is essentially the same as for Unit 2, Cell 12, except that the length of the yard for Unit 3, Cell 29 is approximately 4.26m.

C. Exercise yards in Olearia Unit, Barwon Prison

Exercise Yard 1

1. Exercise Yard 1 has a floor area of approximately 52.33m2.

28.1 The length of the yard is approximately 8.75m.

28.2 The width of the yard is approximately 5.98m.

29. The walls are concrete.

30. The yard faces south south-west.

31. There is a concrete roof extending over the door into the yard.

31.1 The roof extends approximately 5.55m into the yard.

31.2 On the roof, facing downwards, there are three rectangular fluorescent lights, which are turned on 24 hours a day.

1. The portion of the yard that is not covered by the roof is approximately 5.98m wide (being the same width as the yard) and approximately 3.2m long. That portion is covered by a layer of steel mesh made from approximately 4mm thick wire with openings of approximately 75mm x 12.5mm at the same height. The mesh is supported by four steel sleepers.

33. There is a table and seats, a toilet, and some exercise equipment.

Exercise Yards 2, 11 and 12

34. Exercise Yards 2, 11 and 12 are essentially the same as Exercise Yard 1.

Exercise Yards 3 and 10

1. Exercise Yards 3 and 10 are essentially the same as Exercise Yard 1, except that each of Exercise Yards 3 and 10 has a window (covered in steel bars) in the end wall which looks out onto an open area in the prison.

2. Running the width of the window are two small grates, covered in a steel mesh with small holes. Each grate can be opened or closed with a dial. When in the open position, it is possible for some air to flow through the holes.

Exercise Yards 4 and 9

1. Exercise Yards 4 and 9 are essentially the same as Exercise Yard 1, except that Exercise Yards 4 and 9 face north north-east and each has a window (covered in steel bars) in the end wall which looks out onto an open area in the prison.

2. Running the width of the window are two small grates, covered in a steel mesh with small holes. Each grate can be opened or closed with a dial. When in the open position, it is possible for some air to flow through the holes.

Exercise Yards 5, 6, 7 and 8

1. Exercise Yards 5, 6, 7 and 8 are essentially the same as Yard 1, except that Exercise Yards 5, 6, 7 and 8 face north north-east.

D. Rear yards in Melaleuca Unit, Barwon Prison

Unit 4, Loss of Privilege Cell 1

1. The rear yard for Unit 4, Loss of Privilege Cell 1 has a floor area of approximately 16.19m2.

40.1 The length of the yard is approximately 5.395m.

40.2 The width of the yard is approximately 3m.

1. The front end of the yard is concrete, with a window into the cell, a door that connects the cell and the yard, and a shroud that allows the door to be opened and locked flush against the wall.

42. The side walls are concrete.

1. The rear end of the yard has a vertical and horizontal steel frame with clear perspex panels and a gate (also clear perspex).

2. The yard is covered by a layer of steel mesh made from approximately 3mm thick wire with openings of approximately 10mm x 80mm.

3. The cell yard gate opens into an area which is approximately 1.3m wide, facing a wall of steel mesh. The mesh has holes approximately 75mm in diameter and approximately 20mm apart. There is a vinyl retractable covering which can be lowered over the outer wall and is controlled by unit staff. There is also a gate in the wall. This area is also covered by the same mesh as the yard itself.

4. The yard faces south south-west and looks onto the unit sallyport. The sallyport is covered by a roof and enclosed by walls. The distance from the rear end of the yard to the wall of the sallyport is approximately 9m.

5. There is an eave extending over the door between the cell and the yard, which is approximately 1m long. On the wall over the door, there is a fluorescent light facing outwards into the yard, which is turned on 24 hours a day. There is nothing else in the yard.

Unit 4, Loss of Privilege Cell 2 and the Observation Cell

1. The rear yards for Unit 4, Loss of Privilege Cell 2 and the Observation Cell are essentially the same as for Unit 4, Loss of Privilege Cell 1.

2. The distance from the rear ends of the yards to the wall of the sallyport is slightly less for Loss of Privilege Cell 2, than it is for Loss of Privilege Cell 1. The distance from the rear ends of the yards to the wall of the sallyport is slightly less for the Observation Cell than it is for Loss of Privilege Cell 2. The differences arise because the wall of the sallyport is diagonal.

E. Rear yards in Acacia Unit, Barwon Prison

Unit 4, Cell 21

1. The rear yard for Unit 4, Cell 21 has a floor area of approximately 20.37m2.

50.1 The length of the yard is approximately 8.05m.

50.2 The width of the yard is approximately 2.53m.

1. The front end of the yard is brick, with a window into the cell, a door that connects the cell and the yard, and a lock that allows the door to be opened and locked against the wall.

2. The side walls are brick.

3. The rear end of the yard is a steel sheet with holes approximately 75mm in diameter and approximately 20mm apart punched in it, with a covering of clear perspex.

54. The yard faces east south-east.

1. The cell yard gate opens to another steel sheet of the same material with another gate. The distance between the two sheets is approximately 1.905m.

2. That gate in turn opens onto a covered (with clear plastic) staff walkway approximately 1.4 metres wide and then a solid steel fence.

57. The yard is covered by an arched steel sheet with holes punched in it.

1. There are concrete overhangs over both the door between the cell and the yard and the cell yard gate. There is nothing else in the yard.

Unit 4, Cells 23 and 24

1. The rear yards for Unit 4, Cells 23 and 24 are essentially the same as for Unit 4, Cell 21, except that the width of the yard for Cell 23 is approximately 2.47m.

F. Exercise yards in Acacia Unit, Barwon Prison

Exercise Yard 1

1. Exercise Yard 1 has a floor area of approximately 179.15m2.

60.1 The yard has an irregular shape.

60.2 As to length, the yard is approximately 19.07m at its longest and approximately 15.170m at its shortest.

60.3 As to width, the yard is approximately 11.308m at its widest and approximately 3.858m at its narrowest.

61.1 One wall has a storage cage area (to which prisoners do not have access).

62. The yard is covered by a layer of steel mesh with openings of approximately 70mm x 80mm.

64. There is a fine net that hangs above the steel mesh.

65. The entrance into the yard faces east south-east.

66. There is an undercover area near the entry to the yard.

67. There is a telephone, a toilet, a boxing bag and a chin up bar.

68. Exercise Yard 2 has a floor area of approximately 91.60m2, part of which is the caged area referred to at paragraph 69 below.

68.1 The length of the yard is approximately 9.575m.

68.2 The width of the yard is approximately 9.567m.

1. One wall is made of brick. On that wall is a light that remains on 24 hours a day. There is a caged area against this wall, to which prisoners do not have access.
2. Another wall is a steel framing with clear panels that look into the inside day room and kitchen area.
3. Another wall is a steel sheet covered in holes with openings of approximately 75mm in diameter and approximately 20mm apart punched in it. Behind that sheet (ie on the outside) is a panel of translucent plastic. In front of the sheet (ie on the inside of the yard) is a further steel sheet covered in holes with openings of approximately 75mm in diameter and approximately 20mm apart punched in it.
4. Another wall is a steel sheet covered in holes with openings of approximately 75mm in diameter and approximately 20mm apart punched in it. Behind the sheet is a glass panel. One part of the panel is transparent; the other part is a mirror to the person in the yard.
5. The yard is covered by a steel sheet with holes punched in it.
6. Approximately one-third of the yard is also covered by a steel roof.
7. The entrance into the yard faces north north-east.
8. There is a telephone, a toilet, and some gym equipment.

77. The "Crimsafe" mesh referred to above:[140]

77.6 allows up to 53% airflow (ie. blocks up to 47% airflow);

[1] Affidavit of George Marrogi sworn 24 April 2024 (First Marrogi Affidavit), [56]-[58]; Affidavit of Dale Slater affirmed 18 June 2025 (First Slater Affidavit), [135]; Affidavit of Melissa Sueanne Westin affirmed 10 October 2025, [5] (Westin Affidavit). The plaintiff was transferred to the Exford Unit of the MRC on 17 September 2025 after contraband was found in his cell at Barwon Prison in the circumstances referred to at [8] below.

[2] Olearia, Acacia and Melaleuca Units. Evidence was given about Barwon Prison units by Dale Slater, General Manager of Barwon Prison, in the First Slater Affidavit, [13]-[14].

[3] Further Amended Originating Motion dated 13 May 2025, [15].

[4] Further Amended Originating Motion, [17A]; [18(c)].

[5] Defendants' Summons dated 15 October 2025, supported by the Affidavit of Sarah Alexandra McKellar-White affirmed on 15 October 2025, which exhibited the evidence on which the defendants sought to rely, including the Westin Affidavit.

[7] The first day of the hearing was 15 September 2025, when the plaintiff's solicitors and counsel attended the hearing in Court and the plaintiff observed proceedings by video link from a room at Barwon Prison. The second day of the trial, 16 September 2025, involved a view of the MRC and Barwon Prison. On 17 September 2025, the hearing resumed in Court and the plaintiff was observing by video link from a room at Barwon Prison.

[8] Orders of Justice Harris made on 31 October 2025, [1]-[2].

[9] I accepted the defendants' submission that it was appropriate to take instructions and seek advice from the defendants' counsel before a decision was made to tender the evidence and apply to reopen for that reason. This could not occur while the defendants' legal team was in Court.

[10] Transcript 15/09/25, T06.07-08 (Submissions).

[11] Transcript 16/10/25, T346.01-06 (Submissions).

[12] Affidavit of Daniel Georgiou sworn 16 October 2025, Exhibit DG.01 Barwon Seizures of Contraband: Prisoners 2024-2025.

[13] Transcript 16/10/25, T346.20-21 (Submissions).

[14] Affidavit of Daniel Georgiou sworn 16 October 2025, Exhibit DG.01, Barwon Seizures of Contraband: Prisoners 2024-2025.

[15] Affidavit of Jennifer Ann Hosking sworn 19 June 2025 (Hosking Affidavit), [100]-[101]; [115]. See also sentencing comments of Judge Rozen in DPP (Vic) & CDPP (Cth) v Marrogi & Mannella [2023] VCC 280.

[17] Transcript 15/09/25, T85.24-25 (Hosking XXN).

[18] Transcript 17/09/25, T255.25-26 (Submissions).

[19] The Regulations were amended by the Corrections Amendment Regulations 2025 with effect from 18 November 2025, so that reg 86(2)(e) reads 'the prisoner is allowed to dress immediately after a strip search is conducted'. Regulation 86(2)(ea) was also added, which provides 'the prisoner is allowed to dress in private after a strip search is conducted unless the prison officer believes on reasonable grounds that allowing the prisoner to dress in private may threaten - (i) the safe custody or welfare of the prisoner; or (ii) the security or good order of the prison'.

[20] George Marrogi - Imprisonment Chronology; First Slater Affidavit, [41]; [57]; [71]-[72].

[21] George Marrogi - Imprisonment Chronology; First Slater Affidavit, [41]; [57]; [71]; [92]; Selisky Affidavit, [9]; [27]; [50].

[22] George Marrogi - Imprisonment Chronology; First Slater Affidavit, [41]; [57]; [71]; [92].

[23] George Marrogi - Imprisonment Chronology; Affidavit of Sarah McKellar-White, [6].

[24] Plaintiff's Further Amended Originating Motion, [12]; [15].

[25] Plaintiff's Further Amended Originating Motion, [18(a)].

[26] Transcript 16/10/25, T410.24-T411.09 (Submissions). Collectively the footage was identified as Exhibit J1.

[27] Affidavit of Nicholas Paul Selisky affirmed 19 June 2025 (Selisky Affidavit), [27(a)-(c)].

[28] First Slater Affidavit [23], [27], [45], [48(a)-(b)], [60].

[29] Applicant's Objections to Defendants' Affidavits filed 12 September 2025, 1-5.

[30] Relying on Honeysett v The Queen (2014) 253 CLR 122 at 131 [21] (French CJ, Kiefel, Bell, Gageler and Keane JJ), that '[a]n opinion is an inference drawn from observed and communicable data'. Their Honours were referring to Lithgow City Council v Jackson (2011) 244 CLR 352, 359 [10] (French CJ, Heydon and Bell JJ).

[31] Transcript 15/09/25, T22.21-26 (Submissions).

[32] See Statement of Agreed Facts dated 24 November 2025, introduction.

[33] First Marrogi Affidavit, [30]-[31].

[39] Hosking Affidavit, [140]; [155].

[44] First Marrogi Affidavit, [48]-[49].

[45] First Marrogi Affidavit, [50(b)].

[47] First Marrogi Affidavit, [51(d)-(e)].

[48] First Marrogi Affidavit, [56(e)-(g)].

[50] First Marrogi Affidavit, [53(f)-(g)].

[52] The title given by Corrections Victoria to the officer holding the position of Governor of the prison for the purposes of the Corrections Act.

[55] Selisky Affidavit, [21]; [23]; [28]-[31].

[56] Statement of Agreed Facts, [7.1].

[57] Statement of Agreed Facts, [77.3]

[58] Statement of Agreed Facts, [7.2].

[71] First Slater Affidavit, [7]; [19]-[25].

[72] First Slater Affidavit, [41]-[48].

[73] First Slater Affidavit, [57]-[61].

[74] First Slater Affidavit, [30]-[33].

[76] Plaintiff's Submissions dated 28 April 2025, [13], citing SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, 149 [20] (Kiefel CJ, Bell and Nettle JJ); 157 [41] (Gageler J); R v A2 [2019] HCA 35; (2019) 269 CLR 507, 521 [33], 522 [37] (Kiefel CJ and Keane J); 545 [124] (Bell and Gageler JJ); 559-560 [163] (Edelman J).

[77] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, 374 [35]-[36] (Gageler J).

[78] Plaintiff's Submissions, [13]-[14].

[79] (2011) 245 CLR 1.

[80] [2012] VSCA 25; (2012) 34 VR 206, 215 [24] (Warren CJ, Nettle and Redlich JJA).

[83] United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), GA Res 70/175, UN Doc A/RES/70/175 (8 January 2016, adopted by the General Assembly on 17 December 2015).

[84] European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Second General Report on the CPT's activities [CPT/Inf (92)3], 13 April 1992.

[85] Certain Children v Minister for Families and Children [2016] VSC 796; (2016) 51 VR 473, 504 [174] (Garde J).

[86] Andrew Coyle and Helen Fair, A Human Rights Approach to Prison Management: Handbook for Prison Staff, (Institute for Criminal Policy Research at Birbeck, University of London, 3rd ed, 2018) 47 (emphasis added).

[87] [2015] IEHC 273 (Whelan).

[91] Section 19(1) states: 'Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person'.

[92] [2022] ACTSC 83; (2021) 18 ACTLR 1 (Davidson).

[93] Davidson, 51 [244] (Loukas-Karlsson J).

[94] Davidson, 64 [316] (Loukas-Karlsson J).

[95] Macquarie Dictionary (online version, 2025) 'open air'.

[96] See for example Corrections Act, s 55EA referring to maximum and high security prisoners, and s 47(1)(l) relating to the classification system for prisoners established in accordance with the regulations. The classification system established by the Regulations provides in reg 26 for security ratings of high security, maximum security, medium security and minimum security.

[97] Corrections Act, s 1.

[99] Transcript 17/09/25, T194.25-31; T198.11-22 (submissions).

[100] Transcript 17/09/25, T280.21-T281.06 (submissions).

[101] Plaintiff's Submissions, [21]; [41].

[102] Andrew Coyle and Helen Fair, A Human Rights Approach to Prison Management: Handbook for Prison Staff, (Institute for Criminal Policy Research at Birbeck, University of London, 3rd ed, 2018) 47.

[103] This is implicit in the authors' acknowledgement that rule 23 requires a view onto natural growth or vegetation should be facilitated, 'if at all possible'. See the passage cited above at [52].

[104] My observation on the view was that when the sun came out while visiting the Exford Unit, it was not evident inside the Exford yards. Although that situation may be different at different times of day or with different degrees of cloud, I note the agreed facts that Crimsafe mesh 'reduces solar heat gain by up to 53%', 'filters up to 62% of UV radiation', and 'reduces visible light by up to 55%': Statement of Agreed Facts [77.4]-[77.5]; [77.7]. For this reason I am satisfied that the degree to which the sun and daylight can be seen or felt in the yards would not be materially different over time from the conditions I observed on the day of the view.

[105] Statement of Agreed Facts, [77.4]-[77.5]; [77.7].

[106] Statement of Agreed Facts, [77.6].

[107] Statement of Agreed Facts, [12], [17].

[108] Statement of Agreed Facts, [16], [18].

[109] Statement of Agreed Facts, [19].

[110] Statement of Agreed Facts, [20].

[111] Two of the 'panels' with bars and mesh constitute the door out of the yard.

[112] Statement of Agreed Facts, [21]-[24].

[113] Statement of Agreed Facts, [25]-[26].

[114] Statement of Agreed Facts, [28]-[34]; [37]; [39].

[115] Statement of Agreed Facts, [35]-[38].

[116] Statement of Agreed Facts, [40]; [48].

[117] Statement of Agreed Facts, [43]; [45].

[118] Statement of Agreed Facts, [46]; [49].

[119] Statement of Agreed Facts, [44]; [47].

[120] Statement of Agreed Facts, [50]-[53]; [59].

[121] Statement of Agreed Facts, [55]-[56]; observations from view.

[122] Statement of Agreed Facts, [68]-[72]; observations from view.

[123] Statement of Agreed Facts, [73]-[74]; [76]; observations from view.

[124] Further Amended Originating Motion, [17A]; First Marrogi Affidavit, [65].

[125] Further Amended Originating Motion, [17A]; First Marrogi Affidavit, [65].

[126] Hosking Affidavit, [175]; Affidavit of Dale Slater Affidavit affirmed 14 August 2025, [16].

[127] Further Amended Originating Motion, [18(c)-(d)].

[128] Joint Memorandum Explaining Legal Basis for Proposed Consent Orders dated 15 September 2025, [13].

[129] First Slater Affidavit, [66]-[70]; Selisky Affidavit, [87]-[92].

[130] Affidavit of George Marrogi sworn 3 July 2025, [6]-[8].

[131] Joint Memorandum, [12]-[13].

[132] Minute of Proposed Consent Orders dated 15 September 2025, [2]-[3].

[133] It will not be capricious, or resulting from conduct which is unpredictable, unjust or unreasonable in the sense of not being proportionate to the legitimate aim sought, as referred to in Thompson v Minogue [2021] VSCA 358; (2021) 67 VR 301, 318 [55]; 360 [211] (Kyrou, McLeish and Niall JJA).

[134] Thompson v Minogue, 319 [62] (Kyrou, McLeish and Niall JJA).

[135] Thompson v Minogue, 318-319 [58]; 321 [70] (Kyrou, McLeish and Niall JJA); DPP (Vic) v Kaba [2014] VSC 52; (2014) 44 VR 526, 647 [468] (Bell J).

[136] First Slater Affidavit, [68]-[70]; Selisky Affidavit, [90].

[137] Selisky Affidavit, Exhibit NS-1, 97-114, Strip Searches in Prisons, Commissioner's Requirement Number 1.2.3, issued November 2022.

[138] Selisky Affidavit, Exhibit NS-1, 174-202, Metropolitan Remand Centre Local Operating Procedure No 1.05(1) Searches and Patrols.

[139] First Slater Affidavit, Exhibit DS-1, Various Prisoner Searches Local Operating Procedure 1.05-1C H.M. Prison Barwon, December 2023, 19 February 2024, 6 May 2024.