Former St Basil’s managers lose appeal to avoid giving evidence to coroner

Two managers at St Basil’s aged care home in Melbourne, where 50 residents died in what remains Australia’s deadliest coronavirus outbreak, have lost their Court of Appeal bid to avoid giving evidence to the state coroner.

Former St Basil’s chairman Kon Kontis and director of nursing Vicky Kos will now be forced to give evidence to coroner John Cain about the events of July and August 2020, when 45 residents at the Fawkner facility died from COVID-19 and another five died from suspected neglect.

Kon Kontis, the former chairman of St Basil’s, will be forced to give evidence to the coroner.Credit:Jason South

Kontis and Kos were the final witnesses directed to give evidence to the state coroner late last year. Over five weeks, Cain heard from 55 witnesses about what had unfolded at the home.

The two worked at St Basil’s when the outbreak began in the nursing home in July 2020 and were the only witnesses who refused to speak when summoned by Cain.

They argued that giving evidence could incriminate them in other court matters, including a WorkSafe criminal trial that is being heard in the Melbourne Magistrates’ Court.

On Monday, Court of Appeal justices Stephen McLeish, Kristen Walker and Jack Forrest dismissed the pair’s attempt to avoid giving testimony to Cain.

In their ruling, they agreed with the previous justice who had looked at the case and found it was in the interests of justice for both Kos and Kontis to be required to give evidence to the inquest.

Kontis and Kos, who have tried multiple avenues of appeal to avoid giving evidence to the coroner, argued that forcing them to take the stand would risk the integrity of the accusatorial system of criminal justice in matters being heard in other courts.

They also argued that Cain, in forcing them to give evidence, was effectively “altering the accusatorial system of justice” and that he had erred in saying any potential criminal charge the pair faced “would not seem to attract any penalty of imprisonment”.

Vicky Kos, the former director of nursing at St Basil’s in Fawkner.Credit:Jason South

Their final argument was that the informal way Cain conducted a final session at the Coroners Court on December 16 – including hearing 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”.

The Supreme Court had rejected each one of these grounds for not appearing before Cain, and on Monday, the Court of Appeal agreed.

Among those listening to Monday’s Court of Appeal ruling was Klery Loutas, whose mother, Filia Xynidakis, died in the nursing home, not of COVID-19 but of what Loutas described as sheer neglect.

Of the 117 people who lived at St Basil’s in July 2020, 94 caught COVID-19, and out of 120 employees, 94 caught it.

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