Delay in criminal case against Victorian aged care over Covid deaths

The case against an aged care home at the centre of a devastating killer Covid wave in 2020 in Victoria has returned to court.

Lawyers acting for the home charged after residents died in a Covid cluster have asked for a key hearing to be delayed.

St Basil’s Homes For The Aged In Victoria was due to face a three-day committal hearing in the Melbourne Magistrates’ Court this week when a magistrate would test the evidence.

But when the case was called on Wednesday, the aged care home’s lawyers requested an adjournment, citing an “unfortunate situation”.

The court was told St Basil’s had planned to rely on evidence that surfaced during a now-suspended coronial investigation but had learnt on Tuesday afternoon that they could not use these documents without the permission of State Coroner John Cain.

A lawyer said he had written to Judge Cain on Tuesday, but the coroner “would not grant that permission” without following proper process.

“It is an unfortunate situation,” he said.

“We consider a number of those documents relevant and exculpatory.”

St Basil’s was charged by Victoria’s workplace health and safety regulator in July 2022 with nine breaches of the Occupational Health and Safety Act following a 23-month investigation.

WorkSafe alleges that after the home was notified a worker had tested positive for Covid in July 2020, the aged care home failed to require workers to wear personal protective equipment.

It also allegedly failed to train workers to use protective equipment safely, verify that staff were competent, and supervise its use.

Dozens of residents died during a subsequent Covid outbreak.

The coronial investigation into 50 deaths at the facility was placed on hold indefinitely by Judge Cain until the conclusion of the criminal charges brought by WorkSafe.

In court, St Basil’s requested the committal hearing be pushed back to allow the “necessary steps” of securing access to the documents to take place.

It claimed the material “goes to the heart” of the criminal proceedings, and without the ability to present them, the defence would be “hamstrung”.

The court was told these documents included an expert assessment of the facility’s preparation for an outbreak was “adequate and appropriate” and statements from senior nursing staff.

WorkSafe prosecutors opposed the application, saying the court date had been set in stone for nine months and St Basil’s had plenty of time to prepare.

Ultimately, magistrate Jarrod Williams granted the adjournment “with great reluctance”.

“Very regrettably, I am of the view this matter is to be adjourned in the circumstances,” he said.

“It’s a question of defence being able to properly explore the issues identified.”

Mr Williams said it was difficult to understand how Judge Cain’s requirements had been overlooked, but it seemed to be a “genuine oversight”.

The case will return to court late next month.