Court was called into session and everyone settled into their seats. The first case, it turned out, was not Prime Suspect's. A tall, silver-haired man in his mid-fifties, with eyes so blue they were almost demonic, stepped into the dock. As the reporters began taking notes, Prime Suspect tried to imagine what crime the polished, well-dressed man had committed.
Child molesting.
The man had not just molested children, he had molested his own son. In the parents' bedroom. Repeatedly. On Easter Sunday. His son was less than ten years old at the time. The whole family had collapsed. Psychologically scarred, his son had been too traumatised even to give a victim impact statement.
For all of this, Judge Russell Lewis told the court, the man had shown no remorse. Grave-faced, the judge sentenced him to a minimum prison term of five years and nine months.
The court clerk then called Prime Suspect's case.
At the back of the courtroom, Mendax wondered at the strange situation. How could the criminal justice system put a child molester in the same category as a hacker? Yet, here they both were being sentenced side by side in the same County Court room.
Boris Kayser had called a collection of witnesses, all of whom attested to Prime Suspect's difficult life. One of these, the well-regarded psychologist Tim Watson-Munro, described Prime Suspect's treatments at the Austin Hospital and raised the issue of reduced free-will. He had written a report for the court.
Judge Lewis was quick to respond to the suggestion that hacking was an addiction. At one point, he wondered aloud to the courtroom whether some of Prime Suspect's hacking activities were `like a shot of heroin'.
Before long, Kayser had launched into his usual style of courtroom address. First, he criticised the AFP for waiting so long to charge his client.
`This fellow should have been dealt with six to twelve months after being apprehended. It is a bit like the US, where a man can commit a murder at twenty, have his appeal be knocked back by the Supreme Court at 30 and be executed at 40—all for something he did when he was only twenty years old.
Thoroughly warmed up, Kayser observed that 20 per cent of Prime Suspect's life had gone by since being raided. Then he began hitting his high notes.
`This young man received no assistance in the maturation process. He didn't grow up, he drifted up.
`His world was so horrible that he withdrew into a fantasy world. He knew no other way to interact with human beings. Hacking was like a physical addiction to him.
`If he hadn't withdrawn into the cybernetic highway, what would he have done instead? Set fires? Robbed houses? Look at the name he gave himself. Prime Suspect. It has implied power—a threat. This kid didn't have any power in his life other than when he sat down at a computer.'
Not only did Kayser want the judge to dismiss the idea of prison or community service, he was asking him to order no recorded conviction.
The prosecution lawyers looked at Kayser as if he was telling a good joke. The AFP had spent months tracking these hackers and almost three years preparing the case against them. And now this barrister was seriously suggesting that one of the key players should get off virtually scot-free, with not so much as a conviction recorded against him? It was too much.
The judge retired to consider the sentence. When he returned, he was brief and to the point. No prison. No community service. The recording of 26 convictions. A $500 three-year good behaviour bond. Forfeiture of the now ancient Apple computer seized by police in the raid. And a reparation payment to the Australian National University of $2100.
Relief passed over Prime Suspect's face, pink and sweaty from the tension. His friends and family smiled at each other.
Chettle then asked the judge to rule on what he called `the cooperation point'. He wanted the judge to say that Prime Suspect's sentence was less than it would have been because the hacker had turned Crown witness. The DPP was shoring up its position with regard to its remaining target—Mendax.
Judge Lewis told the court that the cooperation in this case made no difference. At the back of the court, Mendax felt suddenly sad. It was good news for him, but somehow it felt like a hollow victory.
Prime Suspect has destroyed our friendship, he thought, and all for nothing.
Two months after Prime Suspect's sentencing, Trax appeared in another County Court room to receive his sentence after pleading guilty to six counts of hacking and phreaking. Despite taking medication to keep his anxiety under control while in the city, he was still very nervous in the dock.
Since he faced the least number of charges of any of the IS hackers, Trax believed he had a shot at no recorded conviction. Whether or not his lawyer could successfully argue the case was another matter. Bumbling through papers he could never seem to organise, Trax's lawyer rambled to the court, repeated the same points over and over again, jumping all over the place in his arguments. His voice was a half-whispered rasp—a fact which so annoyed the judge that he sternly instructed the lawyer to speak up.
Talking informally before court, Geoff Chettle had told Mendax that in his view there was no way Judge Mervyn Kimm would let Trax off with no recorded conviction. Judge Kimm was considered to be one tough nut to crack. If you were a bookmaker running bets on his court at a sentencing hearing, the good money would be on the prosecution's side.
But on 20 September 1995, the judge showed he couldn't be predicted quite so easily. Taking everything into account, including Prime Suspect's sentence and Trax's history of mental illness, he ordered no conviction be recorded against Trax. He also ordered a $500 three-year good behaviour bond.
In passing sentence, Judge Kimm said something startlingly insightful for a judge with little intimate knowledge of the hacker psyche. While sternly stating that he did not intend to make light of the gravity of the offences, he told the court that `the factors of specific deterrence and general deterrence have little importance in the determination of the sentence to be imposed'. It was perhaps the first time an Australian judge had recognised that deterrence had little relevance at the point of collision between hacking and mental illness.
Trax's sentence was also a good outcome for Mendax, who on 29 August 1995 pleaded guilty to eight counts of computer crime, and not guilty to all the other charges. Almost a year later, on 9 May 1996, he pleaded guilty to an additional eleven charges, and not guilty to six. The prosecution dropped all the other charges.
Mendax wanted to fight those six outstanding charges, which involved ANU, RMIT, NorTel and Telecom, because he felt that the law was on his side in these instances. In fact, the law was fundamentally unclear when it came to those charges. So much so that the DPP and the defence agreed to take issues relating to those charges in a case stated to the Supreme Court of Victoria.
In a case stated, both sides ask the Supreme Court to make a ruling not on the court case itself, but on a point of law. The defence and the prosecution hammer out an agreed statement about the facts of the case and, in essence, ask the Supreme Court judges to use that statement as a sort of case study. The resulting ruling is meant to clarify the finer points of the law not only for the specific case, but for similar cases which appear in future.
Presenting a case stated to the Supreme Court is somewhat uncommon. It is unusual to find a court case where both sides can agree on enough of the facts, but Mendax's hacking charges presented the perfect case and the questions which would be put to the Victorian Supreme Court in late 1996 were crucial for all future hacking cases in Australia. What did it mean `to obtain access' to a computer? Did someone obtain access if he or she got in without using a password? What if he or she used the username `guest' and the password `guest'?
Perhaps the most crucial question of all was this: does a person `obtain access' to data stored in a computer if he or she has the ability to view the data, but does not in fact view or even attempt to view that data?
A good example of this applied to the aggravated versions of the offence of hacking: viewing commercial information. If, for example, Mendax logged into a NorTel computer, which contained commercially sensitive information, but he didn't actually read any of those files, would he be guilty of `obtaining access' or `obtaining access to commercial information'?
The chief judge of the County Court agreed to the case stated and sent it up to the full bench of the Supreme Court. The lawyers from both sides were pleased with the bench—Justices Frank Vincent, Kenneth Hayne and John Coldrey.
On 30 September 1996, Mendax arrived at the Supreme Court and found all the lawyers assembled at the court—all except for his barrister. Paul Galbally kept checking his watch as the prosecution lawyers began unpacking their mountains of paper—the fruit of months of preparation. Galbally paced the plush carpet of the Supreme Court anteroom. Still no barrister.
Mendax's barrister had worked tirelessly, preparing for the case stated as if it was a million dollar case. Combing through legal precedents from not only Australia, the UK and the US, but from all the world's Western-style democracies, he had attained a great understanding of the law in the area of computer crime. He had finally arrived at that nexus of understanding between law, philosophy and linguistics which many lesser lawyers spent their entire careers trying to reach.
But where was he? Galbally pulled out his mobile and checked in with his office for what seemed like the fifth time in as many minutes. The news he received was bad. He was told, through second-hand sources, that the barrister had collapsed in a state of nervous exhaustion. He wouldn't be making it to court.
Galbally could feel his hairs turning grey.
When court opened, Galbally had to stand up and explain to three of the most senior judges in Australia why the defence would like a two-day adjournment. A consummate professional, Geoff Chettle supported the submission. Still, it was a difficult request. Time in the Supreme Court is a scarce and valuable thing. Fortunately, the adjournment was granted.
This gave Galbally exactly two days in which to find a barrister who was good, available and smart enough to assimilate a massive amount of technical information in a short time. He found Andrew Tinney.
Tinney worked around the clock and by Wednesday, 2 October, he was ready. Once again, all the lawyers, and the hacker, gathered at the court.
