Veronica Nelson was jailed three times in the last 12 months of her life, but had never been sentenced to a period of imprisonment as an adult.
The Yorta Yorta, Gunditjmara, Dja Dja Wurrung and Wiradjuri woman died in custody while on remand for shoplifting offences on 2 January 2020.
She had spent 80 days on remand in the previous 12 months awaiting bail for shoplifting offences – the same offences for which she was remanded in custody again on 30 December 2019, three days before her death.
At the Melbourne coroner’s court this week, an inquest into the 37-year-old’s death has been examining the circumstances surrounding her bail hearing on 31 December 2019. It has also been examining Victoria’s bail laws, which the court heard have had a significant impact on the ability of Aboriginal women who are before the court on minor offences to be granted bail.
The evidence so far has detailed how police errors, a lack of legal representation and a change to bail laws contributed to putting Nelson behind bars.
Police form ‘riddled with mistakes’
Nelson was arrested outside Southern Cross station at 3.35pm on 30 December and taken to the Melbourne West police station.
She was arrested on two outstanding warrants relating to failing to attend the Koori court in Shepparton to be sentenced for shoplifting charges. Police had also issued three whereabouts notices, seeking to interview her in relation to further shoplifting incidents alleged to have occurred in October and November 2019.
The remand form to be presented before the magistrate was completed by senior constable Rebecca Gauci.
Under cross-examination from Rishi Nathwani, the lawyer representing Nelson’s mother, Aunty Donna Nelson, Gauci admitted that the form was “riddled with mistakes”.
Gauci had checked the box suggesting that granting Nelson bail would pose “unacceptable risk” to the safety and welfare of others. She told Nathwani she ticked that box because Nelson was stealing to “fund her lifestyle” and drug addiction, and there was a risk that she could respond violently if “confronted by a staff member who wants to protect their property”.
But she agreed, under questioning from Nathwani that there was no evidence of Nelson ever acting in a violent or even confrontational manner.
“So there’s never once been a suggestion … [that] she’s ever assaulted or threatened the welfare of anyone?” Nathwani asked.
“No,” Gauci replied.
Gauci agreed with Nathwani’s statement that the box “shouldn’t have been ticked” and that the form she prepared was “a document riddled with mistakes”.
Nelson did not speak to the Victorian Aboriginal Legal Service
Under Victorian law, police must notify the Victorian Aboriginal Legal Service (VALS) when an Aboriginal or Torres Strait Islander person is taken into custody. That notification was made about 4pm on 30 December 2019.
VALS records, put before the court, say that they called the police station at 4.27pm and were told that Nelson was currently being interviewed by police and did not want to speak to anyone from the VALS. Gauci’s notes put the time of first call at 4.07pm, but also say that Nelson did not want to speak to VALS.
VALS says they made a total of four attempts to contact Nelson between 4.27pm and midnight. They did not get through.
The bail hearing
Nelson was taken to the Melbourne custody centre, the cells underneath the Melbourne magistrates court, at 7pm, arriving too late for her bail application to be heard that night. She spoke to a duty lawyer for Victorian Legal Aid, Peter Schumpeter, who then contacted Nelson’s lawyer, Jill Prior.
Prior is the principal legal officer of the Law and Advocacy Centre for Women and had acted for Nelson since December 2018, when she was on remand on shoplifting charges.
The next morning, on 31 December 2019, Prior had a phone conversation with a barrister named Tass Antos and briefed him to represent Nelson in her bail application. Antos spoke to Nelson in the cells.
But when her bail application was called, Nelson represented herself and was denied bail.
Prior told the inquest she was of the view that Antos would be appearing for Nelson on behalf of the Law and Advocacy Centre for Women, and would be paid by them – either via a grant of legal aid or, if legal aid were not granted, by Prior herself.
She said she had listened to an audio recording of the bail hearing, which was played before the inquest, and that there were “glaring absences of information” concerning Nelson’s health.
Antos told the inquest on Thursday that he had not represented many Aboriginal people in his career. He repeatedly said he could not recall details of the hearing or the conversations he had with Prior around the hearing, but said to the best of his memory there may have been “high hurdles to getting bail”.
He agreed under cross-examination that he may have offered Nelson the option of representing herself so as not to jeopardise a future bail application.
The bail act
Gauci told the inquest that police opposed bail because Nelson’s offending met the threshold for the “exceptional circumstances” test in the Victorian bail act. It puts the onus on an accused person to show that compelling reasons or exceptional circumstances exist for them to be granted bail.
It previously applied only to very serious offences, like murder, but the act was changed in 2018 to broaden the circumstances for which this test can be applied
Nelson met the “exceptional circumstances” test because she was accused of having breached bail and having committed an indictable offence while on bail.
Prior said that the change to the act had created a “dire landscape” for the granting of bail because the lowering of the threshold for the exceptional circumstances test meant that people were being remanded in custody for offences that would not ordinarily carry a sentence of imprisonment.
“The categorisation of bail thresholds as exceptional circumstances in my experience is almost the norm,” Prior told the inquest. “The very vast majority of our clients would present with an exceptional circumstances threshold. All of our clients are women. At least 40% are Aboriginal women – the vast number of those clients are presenting with offences that could be categorised as less serious offences. Not offences against the person; property offences, breaching offences.”
On Tuesday, Sharon Lacy, the counsel assisting the coroner, said that 61.4% of all Aboriginal women held in Victorian prisons as of 1 June 2021, were held on remand.
“Like Veronica, over three-fifths of Aboriginal women in custody at any given time are waiting for their matter to be heard,” Lacy said, in her opening address to the court. “They may never receive a prison sentence but are held in prison on remand. This inquest will consider what mechanisms are involved in making this so.”
The inquest continues.
