Ellis v The King

[2023] SASCA 28

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

ELLIS v THE KING

[2023] SASCA 28

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice Nicholson)

23 March 2023

CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS

CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - GENERAL MATTERS - PRIVILEGES - PRIVILEGE OF PARLIAMENTARY DEBATES AND PROCEEDINGS - STATES

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - FRAUDULENTLY OR DECEPTIVELY OBTAINING MONEY, VALUABLE, FINANCIAL BENEFIT OR ADVANTAGE

Application for permission to appeal against a refusal by a magistrate to stay criminal proceedings on the basis that the proceedings constituted an abuse of process.

The applicant is charged on Information with 23 counts of deception, contrary to s 139 of the Criminal Law Consolidation Act 1935 (SA). He is a member of the House of Assembly. His residential address has been, at all relevant times, in or around Kadina, South Australia, which is over 100 km from Adelaide by road.

At the relevant times, a ‘Country Member’s Accommodation Allowance’ (‘allowance’) was payable to a member of either House of Parliament, where:

•the member’s usual place of residence was more than 75 km by road from the General Post Office at Adelaide (by the most direct route); and

•the member was required to spend the nights claimed in Adelaide for parliamentary or other purposes.

Each charge of deception corresponds to a claim form submitted by the applicant for payment of the allowance and to his receipt of that allowance, in accordance with the dates stated on the claim forms. The respondent alleges that the claim in respect of each date particularised was falsely made, and that the applicant dishonestly benefited himself in the sum particularised in each case.

On 21 July 2020, the Speaker of the House of Assembly tabled in the House a bundle of papers that included copies of the claim forms submitted by the applicant (the Tabled Documents). These were printed by the Corporate Services section of the House of Assembly from its scanned records held on the electronic document records management system, to which redactions were then made by hand. The applicant had originally submitted the claim forms to this section.

The prosecution proposed to tender at trial copies of the claim forms (the KLN1 documents). The KLN1 documents were unredacted, date-stamped, hard copy claim forms that Corporate Services had printed prior to scanning and storing the scanned images. They were held by the Finance Section of the Parliamentary Joint Service Division. The Finance Section had received the KLN1 documents prior to the tabling of the copies of the forms by the Speaker

The magistrate held that the KLN1 documents were brought into existence for administrative purposes unconnected with the proceedings of Parliament, such that no question of parliamentary privilege arose with respect to them. Further, the tabling and subsequent publication…