A Supreme Court judge has reserved his decision on whether the leaders of Melbourne’s St. Basil’s nursing home is set to testify in a coronal investigation into dozens of deaths at the facility.
- Leaders are struggling to avoid giving testimony as part of a coronal investigation
- Supreme Court Justice Stephen O’Meara will deliver his decision at a later date
- Dozens of residents died during the COVID outbreak in July 2020, not only of the virus but also of dehydration and malnutrition
Kon Kontis and Vicky Kos ran the Fawkner home during a fatal COVID-19 outbreak in July 2020.
Within six weeks of the outbreak, 50 elderly residents had died, most of them COVID-19, but some of malnutrition and dehydration after authorities struggled to provide adequate labor.
Kontis and Mrs Kos were called to testify at a coronal hearing at the end of last year, but refused on the grounds that they could incriminate themselves.
Forensic pathologist John Cain issued an order forcing them to appear, but the couple challenged the ruling in the Supreme Court.
The couple’s lawyer claims that forensic scientists have formed an ‘alliance’ with the victim’s families
In a two-day hearing before Judge Stephen O’Meara, the couple’s lawyer Ian Hill QC argued that Mr Kontis and Mrs Kos should not be forced to testify while Victoria’s workplace safety supervisor WorkSafe investigated what happened at St. John’s. Basil’s.
He said there was a fair chance they could be charged with criminal charges, and testifying at the coronary trial with lawyers for WorkSafe who watched would be tantamount to a “dress rehearsal” for a criminal case.
“The scope of the investigation formulated by the defendant (the forensic) was a template for a WorkSafe prosecution,” said Mr. Hill.
Hill also argued that Judge Cain’s decision to compel Mr Kontis and Mrs Kos to testify was influenced by “apprehended bias”.
He said that while the forensic pathologist was deciding whether to force their evidence, he conducted what Mr Hill described as an “extraordinary” hearing in which families of the deceased gave statements that detailed the consequences of the deaths had on their lives.
At that hearing, Judge Cain moved down from the bench to sit among the families and asked them to address him as ‘John’ instead of ‘Your Honor’, a move which Mr Hill suggested showed that Judge Cain had formed a alliance with the families that would affect his judgment.
But Barrister Edwina Smith, acting for the Attorney General, defended the forensic pathologist’s decision to hold the informal hearing, arguing that it fulfilled his obligation under the Coroner’s Act to conduct an investigation “with as little formality and technicality as the interests of justice allow. “.
“It was perfectly fitting for his Honor to sit at the bar table to convey a less frightening presence to family members who spoke to the court on issues that may be of concern,” Ms Smith said.
Judge O’Meara told the court he was “a little confused” over Mr Hill’s argument that it was inappropriate for the forensic pathologist to allow family members to address him by his first name.
“It is the practice of this court now to present ourselves (to a jury) by first name, so the system itself here is somewhat more informal,” the judge said.
Judge O’Meara has reserved his decision in the case for a date yet to be set.