A corruption suspect in South Australia has won a Supreme Court bid for the return of their seized phone, but the state's anti-corruption commissioner will have access to an electronic copy of most of its contents, including text messages between the suspect and their lawyers.
The phone was seized by Independent Commissioner Against Corruption (ICAC) investigators under a search warrant.
The suspect's legal team sought the intervention of the Supreme Court to determine whether the messages in the phone's memory were the subject of legal professional privilege — which would mean the messages could not be examined by the ICAC, Ann Vanstone, or used in evidence.
Supreme Court Justice Greg Parker examined the messages, and found that while a number were rightly privileged, "a very clear majority of the messages that were said to be privileged were not privileged".
After redacting the privileged material, the court ordered hard copies of the legal messages be provided to Commissioner Vanstone.
Suspect seeks return of phone
With the privilege claim settled, the suspect sought the return of the seized phone, under a provision in the ICAC Act which deals with the return of items containing privileged material.
Counsel for the ICAC argued against the application, stating Ms Vanstone was entitled to retain the phone, until a decision on whether charges should be laid.
ICAC lawyers submitted there was concern that "the chain of evidence will have been broken" if the prosecution is not able to tender the phone at the trial.
Justice Parker ruled in favour of returning the phone itself.
But he also granted permission for a digital forensic analyst employed by the ICAC to make a fresh electronic copy of the entire contents of the seized phone, except for the privileged material.
The Supreme Court's findings did not name the suspect, as the ICAC Act's strict secrecy provisions prevent the identification of the subject of an investigation until they appear in court.
