Re Terei (No 3) [2024] VSC 423 (19 July 2024)

2 On 17 July 2024, a judicial monitoring was listed for Ms Terei. I note that it was Ms Terei who asked that a judicial monitoring be scheduled. As matters transpired, the Director of Public Prosecutions filed a notice of application for revocation of bail dated 12 July 2024 and a supporting affidavit dated 15 July 2024. The revocation application was heard on 17 July 2024. Ms Terei did not appear. I revoked Ms Terei's bail. These are my reasons.

3 In short, the revocation application was based on the following:

(a) Since 17 June 2024, Ms Terei had been in breach of the bail conditions made on that date. This included:

(i) failing to reside at the address specified in the bail conditions without notifying the informant of a change of address;

(ii) failing to engage with Corrections Victoria; and

(iii) failing to provide the informant with a new phone number, IMEI or PIN code;

(b) Ms Terei is likely to be arrested and interviewed in relation to a charge of perverting the course of justice. This offence relates to Ms Terei claiming Aboriginality from her maternal line, knowing this to be untrue, during bail applications in this Court on 30 May and 17 June 2024; and

(c) Ms Terei is likely to be arrested and interviewed in relation to offending that occurred on 28 April 2024, which was unknown to the applicant at the time of the bail application. This offending involved a burglary in Coburg where it is alleged that Ms Terei used a vehicle purchased with cash from the DSC Hamilton matter.

4 Ms Terei's former solicitors, Victorian Aboriginal Legal Service, filed a notice to cease to act prior to the hearing of the revocation application. Mr Jacob Patterson, Ms Terei's former solicitor, appeared on 17 July as amicus curiae. I take this opportunity to extend the Court's gratitude to Mr Patterson for his appearance and assistance.

5 Finally, Ms Terei's committal hearing for the DSC Hamilton matters was listed for hearing on 16 July 2024 in the Magistrates' Court. Ms Terei failed to appear and a warrant for her arrest was issued.

6 There is in many ways nothing remarkable about this course of events. Ms Terei is a vulnerable person who presents to the Court with complex mental health issues, a history of family violence, serious drug abuse and a significant history of interface with the justice system. Her historical offending does not involve crimes of violence. Ms Terei was always going to pose a risk on bail, but it was my view that the risk could be ameliorated with strict bail conditions.

7 The unusual and troubling aspect is the allegation that Ms Terei has attempted to pervert the course of justice by lying about her Aboriginality.

8 Section 3 of the Bail Act 1977 (Vic) relevantly provides that:

Aboriginal person means a person who -

(a) is descended from an Aboriginal or Torres Strait Islander; and

(b) identifies as an Aboriginal or Torres Strait Islander; and

(c) is accepted as an Aboriginal or Torres Strait Islander by an Aboriginal or Torres Strait Island community;

9 Before this Court there was evidence by way of affidavit that Ms Terei inherited her Aboriginality from her maternal line and that her mother passed away when she was three years old. This evidence was obtained on instructions from Ms Terei.

10 In most cases, and certainly in my experience, proof of Aboriginality has not been an issue and is ordinarily not challenged. Evidence of a person's Aboriginality is provided by affidavit as occurred in this case. This is an appropriate manner in which evidence of this kind is to be provided to the Court for the purpose of a bail application. I can see no reason why this should change or that an applicant or their legal representative should be required to do anything more than set out the basis of a person's Aboriginality as was done in this case. The circumstances of this case are unique and allegedly involve blatant deception about an individual's Aboriginality.

11 Following the bail applications on 30 May and 17 June 2024, the informant had real concerns about Ms Terei and took the time to listen to an extensive number of Arunta phone recordings between Ms Terei, Luke Wells and Donna Wells made prior to 30 May 2024, while Ms Terei was in custody.

12 The evidence before me, arising from enquiries made following comments during these calls, is that Ms Terei's mother is from New Zealand, is not Aboriginal and still lives in New Zealand. It is therefore alleged that Ms Terei claimed her Aboriginality from her maternal line, knowing it was untrue, 'in order to have the Court consider s 3A of the Bail Act when she was not entitled to do so'.[2] While this is not the time to determine the current allegations made against Ms Terei, the Arunta phone recordings provide strong evidence that Ms Terei is not an Aboriginal person and sought to gain some benefit in the bail application on the basis of identifying as an Aboriginal person.

13 The developments in this particular case do not in any way alter my comments in Re Terei [2024] VSC 294 at [55]- [61]. The amendments to the Bail Act 1977 (Vic), and in particular s 3A, are a call to action to bail decision-makers to look beyond the personal circumstances of the individual applicant and to be guided by the critical factors set out in s 3A. It is, as I said, more than simply a box ticking exercise. The decision-maker must endeavour to not contribute to the historic overrepresentation of Aboriginal and Torres Strait Islander people in custody unless there is good reason to do so. However, I repeat that the amendments have not created a more lenient test for Aboriginal persons. The amendments are a recognition of specific factors that uniquely affect Aboriginal persons and that must be taken into account when determining a bail application for an Aboriginal person.

14 As a result of the breaches of bail and the fresh allegations of serious dishonesty offences, I have found that Ms Terei does pose an unacceptable risk of endangering the safety or welfare of any other person, failing to answer bail and interfering with a witness or otherwise obstructing the course of justice. Accordingly, I have revoked Ms Terei's bail. I hasten to add that the absence of Aboriginality was not a determinative factor in this decision.

[1] Re Terei [2024] VSC 294; Re Terei (No 2) [2024] VSC 352.

[2] Affidavit of Stephen Hapgood sworn 15 July 2024, [20].