Key evidence in the trial of former Liberal South Australian state MP Fraser Ellis may not be admissible in court due to parliamentary privilege, his lawyer claims.
Mr Ellis was charged with 23 counts of deception last February over his alleged misuse of the Country Members Accommodation Allowance, following an Independent Commissioner Against Corruption (ICAC) investigation.
Mr Ellis is accused of making 78 fraudulent claims for the allowance, totalling more than $18,000 —between May 13, 2018, and June 12, 2020.
His trial was supposed to start in November last year but was delayed until after the state election — which saw the member for Narungga re-elected as an independent with almost 60 per cent of the vote after preferences.
Today, the trial was pushed back until August, due to issues with witness availability after the initial trial date clashed with a parliamentary sitting week.
The delay will also allow the court to determine what evidence will be admissible.
Parliamentary privilege gives MPs immunity from legal action when they say or write something in parliament when otherwise they could be sued or charged.
But in this case, it could be used to prevent key evidence — that is, the forms Mr Ellis filled out to claim the allowance — from being permitted in court.
Case could be dismissed without documents
All members of parliament were required to table a decade of claims in July 2020, following an exclusive ABC investigation into MP's use of the allowance.
Mr Ellis's lawyer, Sam Joyce, today told the Adelaide Magistrates Court that could render the documents inadmissible in court, due to parliamentary privilege.
Magistrate Simon Smart questioned how "essential" the documents were to the charges.
"If that [evidence] does attract some sort of privilege and cannot be used, the charge falls away, is that right?" he asked.
Prosecutor Ryan Williams replied that without the documents, the case could be dismissed.
"If parliamentary privilege applied, we would have to accept the evidence cannot be used at all given it forms the basis of the alleged dishonest representations, it would be an essential issue," he said.
Mr Williams told the court that a "common sense" approach should prevail to the application of the law.
"There's some authority that parliamentary privilege does not protect against the misuse of parliamentary bonds," he said.
The defence will be given until the end of May to file any applications for the exclusion of evidence, with the Director of Public Prosecutions allowed 14 days to reply.
Documents produced by parliament were not presented during the trial of former MP Sam Duluk last year, after former Liberal speaker Josh Teague said they did not have to be handed over to Mr Duluk because of parliamentary privilege.
Mr Duluk did not oppose the speaker's claim and was eventually found not guilty of assault.
Changes were made to the ICAC Act last year to shield more documents under parliamentary privilege from the ICAC and the state ombudsman.
