Independent state MP Troy Bell is set to learn if a court will delay his sentencing on theft convictions and await the outcome of an appeal, or proceed and potentially cost him his seat.
Last September, a South Australian District Court jury found Bell, 51, guilty of 20 counts of theft and five aggravated counts of dishonest dealings, committed between 2009 and 2013.
Prosecutors had alleged that he abused his position as an Education Department employee to steal more than $430,000 from not-for-profits that helped vulnerable school children, and used it to fund property investments and pay debts.
On Friday, Judge Rauf Soulio will decide whether he proceeds with the sentencing process, or awaits the outcome of Bell's appeal, which is listed for hearing in the Court of Appeal on March 13.
The member for Mt Gambier has represented the South-East seat since 2014. He quit the Liberal Party and became an independent after he was charged in 2017.
SA’s Constitution Act provides for the vacation of a seat in the House of Assembly if a member is convicted of an indictable offence. But the government has indicated it will not take action until Bell’s appeal against his convictions has been heard.
At a District Court hearing last October, Judge Soulio addressed Bell's position as an MP while awaiting the appeal and questioned whether it would impact sentencing in the long-running case.
"Given that the parliament … has indicated an intention not to take action pending the appeal, is proceeding with sentence potentially cutting across that approach?" he said.
Prosecutor Jemma Litster said the judge must “act independently of the parliament”.
Taking Bell’s position in parliament into account "would be to treat Mr Bell differently to any other defendant before the court and that would be corrosive of the administration of justice," she said.
In December, Judge Soulio heard an application from Bell’s lawyers to stay the sentencing process or stay the delivery of sentence.
Nicholas Healy told the court that if his client was jailed before the Court of Appeal heard his case, “parliament’s hand would be forced”.
“Should sentence be passed – and indeed if that sentence results in a sentence of imprisonment – a by-election will automatically be triggered on the basis that he is absent from parliament,” Mr Healy said.
“If Mr Bell is then successful on his appeal and a by-election has been automatically triggered, and someone else then occupies his seat, he has no recourse to reclaim that seat.”
