It has been 31 years since the final report and recommendation of the Royal Commission into Aboriginal Deaths in Custody was published, yet the rates of indigenous incarceration and deaths in custody continue to prove troubling across the nation.
An apt and poignant reminder of this systemic issue is the recent death of Veronica Nelson in Melbourne's Dame Phyllis Frost Centre on 2 January 2020 and the subsequent inquest undertaken by the Coroner's Court into her passing. The result of the five-week inquest uncovered a shocking series of fatal flaws in both the court and prison system and revealed ultimately that Veronica's death was avoidable. So, what needs to change to prevent similar tragedies moving forward?
Who was Veronica?
Veronica was a proud 37-year-old Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman. She was arrested on 30 December 2019 after being accused of shoplifting and missing a court date, and on 31 December 2019 she was denied bail by the Melbourne Magistrates' Court. At the time of her arrest and remand into the care of Corrections Victoria, she was withdrawing from heroin and suffering from a rare medical condition affecting her intestine, which saw her condition in custody significantly deteriorate in the two days between her denial of bail and her death. Though there were many failings and Veronica faced a system stacked against her, two glaring issues stand out as key contributors to her death: 1. The current bail laws operating in Victoria; and 2. The medical care and treatment available to persons in custody.
What are the current bail laws?
Two days before her death, Veronica Nelson was informed by the Magistrate at her bail hearing that she would have to demonstrate “exceptional circumstances” in order to get bail. Veronica was unrepresented before the Magistrates' Court and despite being supported in court by her family and despite having caring obligations to her mother and brother, who were both ill and required Veronica's support, she was denied bail.
Unfortunately, bail reform legislation enacted in 2018 following the Bourke Street tragedy has meant bail refusals have become a common occurrence. The sweeping 2018 reforms significantly tightened bail laws, setting far higher tests to be met before persons could be granted bail. So high that allegations of shoplifting could see an accused denied bail and face lengthy delays in custody before their matter is back before the Court, as was the case with Veronica.
At her bail hearing Veronica was informed by the Magistrate that because she had allegedly breached bail associated with existing shoplifting charges, she would have to prove “exceptional circumstances” to be granted bail again. This placed the significant onus on Veronica to articulate complex and sensitive information in open court, and show why she should be given bail. The Magistrate went on to tell Veronica that she would have to prove “something really out of the ordinary” to be released and that her supportive partner and unwell family members were not enough to justify a release on bail.
Whilst well intentioned with community safety and public policy concerns in mind, the reality of the 2018 bail reforms is such that it disproportionately impacts our state's most vulnerable people. The practical effect is one that criminalises those experiencing social disadvantage as well as people with vulnerabilities such as mental health issues or disabilities. Being remanded in custody regularly results in people losing housing, government payments, support services and contact with family members, all of which increase the likelihood of the person offending in the future. Often, these people have not committed serious crimes nor do they pose a threat to the community.
This is not a new assessment of bail laws in Victoria. In March 2022, a parliamentary committee called upon the state government to urgently overhaul bail laws due to the harm caused to our state's most vulnerable with little tangible community benefit. Nonetheless, the laws remain in place and continue to pose serious risks to overpoliced and vulnerable Victorian Aboriginal and Torres Strait Islander communities.
Care and Treatment in Custody
Punitive bail laws are only the first system which failed Veronica Nelson. Following her refusal of bail, Veronica was transferred to the Dame Phyllis Frost Centre, a women's prison in Melbourne's west. The Coroner's Court heard that in the lead up to her death Veronica was vomiting and experiencing severe cramps, was increasingly dehydrated, and that there were several missed opportunities to save Veronica from the profound malnutrition and vomiting which contributed to her death. In the hours before her death Veronica repeatedly told prison officers that she was withdrawing from heroin and called for help on no less than 12 occasions. Rather than receiving care and medical attention, Veronica was met with a staggering lack of empathy, compassion and basic human decency.
The Coroner's Court heard that Veronica was never taken to hospital or seen by a doctor, instead she was lied to by prison officers who claimed to have called for a medical assistance and kept her inside a locked cell with a sign that read “do not unlock”. Even when medical assistance was provided, the nurse who undertook Veronica's assessment, did so through the locked cell door and did not read Veronica's patient notes from colleagues beforehand. At the inquest, the nurse in question agreed that assessing Veronica in person, rather than through a locked door, was something that could have saved her life. The medical panel before the inquest described this health care treatment Veronica received as “utterly, appallingly undignified”, and defying “any humane interaction”.
Though a harrowing story of neglect and systemic failure, Veronica's experience is far from uncommon. Both the legal and prison systems that underpinned and controlled Veronica's fate failed her in December 2019, and little has been done to change their operation. Three decades ago, the Royal Commission in the Aboriginal Deaths in Custody recommended that the arrest of Aboriginal people should be a last resort, and that prison staff should be trained to recognise when someone's health is deteriorating. Yet, since then there have been a further 489 Indigenous deaths in custody, including 320 in prison, 165 in police custody or custody-related operations and 4 in youth detention, with 81 of those in the 2020-21 year alone. These figures paint the picture of a widespread failure of the system, which without reform will continue to cause tragic and avoidable deaths.