Kon Kontis the former St Basil’s chairman and Vicky Kos the director of nursing home lost their Supreme Court bid to avoid giving testimony to the state coroner.
The two directors will be forced to provide evidence to coroner John Cain about the events of July and August 2020, when 45 residents at the home died with COVID-19 and another five perished from suspected neglect.
50 residents died in what is Australia’s deadliest coronavirus outbreak in St Basil’s aged care home in Fawkner.
Kontis and Kos held senior roles at St Basil’s when the outbreak began in July but refused to speak when summoned by Cain last year. Cain has heard from 55 witnesses about what had unfolded in the home.
Kontis and Kos argued that by giving evidence that they could incriminate themselves in other court matters, like the WorkSafe criminal trial, which began on Monday, in the Melbourne Magistrates’ Court.
Supreme Court Justice Stephen O’Meara dismissed their bid to avoid giving testimony to the coroner.
Kontis and Kos had attempted to avoid giving evidence to the coroner through four avenues of appeal.
Their argument was that forcing them to give evidence to the coroner would risk the integrity of the accusatorial system of criminal justice in matters being heard in other courts.
They argued that Cain, in forcing them to give evidence to his court was effectively “altering the accusatorial system of justice”.
They also argued that Cain had erred in saying any potential criminal charge the pair faced “would not seem to attract any penalty of imprisonment”.
Their final argument was that the informal way Cain conducted a final session at the Coroners Court on December 16 – including hearing individually from families about the impact of the deaths – “could reasonably have given rise to an apprehension of bias in the mind of an informed and fair-minded lay observer”.
Justice O’Meara rejected each one of these grounds for not appearing before Cain.
Among those listening to Monday’s ruling was Klery Loutas, whose mother, Filia Xynidakis, died in the nursing home, not of COVID-19 but of what she described as “sheer neglect”.
“What these poor souls suffered [in St Basil’s], it’s quite shocking what they endured. I feel a sense of relief that we are going to get another piece of the puzzle,” she said on Monday.
“Understanding what happened before the outbreak, how prepared St Basil’s was or wasn’t, it will help us understand how and why it happened, and to ensure it doesn’t happen again.”
The new team that now runs St Basil’s in Fawkner, where 56 residents live, have effectively controlled a new outbreak at the home that began last month.
By mid-July, there were 27 residents and four staff members with a COVID-19 infection, federal health department figures show, but by last week, that number had fallen to just one resident.
On Monday, a short administrative hearing was held relating to nine criminal charges laid by WorkSafe against the Fawkner home, which is owned by the Greek Orthodox Archdiocese of Australia.
The charges against St Basil’s included failing to provide a safe working environment, adequate instruction, and supervision for staff at the home, and a safe place for residents. Of the 117 people residing at St Basil’s in July 2020, 94 caught COVID-19. Out of 120 employees, 94 got infected.
Charge sheets show that the alleged offences occurred between March and July 2020, when the facility was expected to implement measures to keep COVID-19 out and to adequately deal with an outbreak. Each charge carries a maximum fine of $1.49 million.
The case will return to the Melbourne Magistrates’ Court in December.