Suelette dreyfus julian assange



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over the statement. From a damage-control perspective, it wasn't a

complete disaster. Prime Suspect certainly hadn't gone in hard. He

could have raised a number of matters, but didn't. Mendax had already

admitted to most of the acts which formed the basis of his 31 charges

in his police interview. And he had already told the police a good

deal about his adventures in Telecom's telephone exchanges.

However, Prime Suspect had elaborated on the Telecom break-ins in his

statement. Telecom was owned by the government, meaning the court

would view phreaking from their exchanges not as defrauding a company

but as defrauding the Commonwealth. Had the DPP decided to lay those

new charges--the Telecom charges--in February 1995 because Prime

Suspect had given the AFP a draft Crown witness statement back then?

Mendax began to suspect so. Nothing seemed beyond doubt any more.

The immediate crisis was the committal hearing in the Melbourne

Magistrates Court. There was no way Boris Kayser was now going to

decimate their star witness, a NorTel information systems

manager. Galbally would have to run a cross-examination himself--no easy

task at short notice, given the highly complex technical aspects of the

case.

Inside the courtroom, as Mendax got settled, he saw Prime Suspect. He



gave his former friend a hard, unblinking, intense stare. Prime

Suspect responded with a blank wall, then he looked away. In fact,

even if Mendax had wanted to say something, he couldn't. As a Crown

witness, Prime Suspect was off-limits until the case was over.

The lawyers began to file into the courtroom. The DPP representative,

Andrea Pavleka, breezed in, momentarily lifting the tension in the

windowless courtroom.

She had that effect on people. Tall, slender and long-legged, with a

bob of sandy blonde curls, booky spectacles resting on a cute button

nose and an infectious laugh, Pavleka didn't so much walk into a

courtroom as waft into it. She radiated happiness from her sunny face.

It's a great shame, Mendax thought, that she is on the other side.

The court was called into session. Prime Suspect stood in the dock and

pleaded guilty to 26 counts of computer crimes.

In the course of the proceedings his barrister, Boris Kayser, told the

court that his client had cooperated with the police, including

telling the AFP that the hackers had penetrated Telecom's exchanges.

He also said that Telecom didn't believe--or didn't want to

believe--that their exchanges had been compromised. When Kayser

professed loudly what a model citizen his client had been, Ken Day,

sitting in the public benches, quietly rolled his eyes.

The magistrate, John Tobin, extended Prime Suspect's bail. The hacker

would be sentenced at a later date.

That matter dealt with, the focus of the courtroom shifted to Mendax's

case. Geoff Chettle, for the prosecution, stood up, put the NorTel

manager, who had flown in from Sydney, on the stand and asked him some

warm-up questions.

Chettle could put people at ease--or rattle them--at will. Topped by a

minute stubble of hair, his weathered 40-something face provided a

good match to his deep, gravelly voice. With quick eyes and a hard,

no-nonsense manner, he lacked the pretentiousness of many barristers.

Perhaps because he didn't seem to give a fig about nineteenth century

protocols, he always managed to looked out of place in a barrister's

wig and robe. Every time he stood up, the black cape slid off his lean

shoulders. The barrister's wig went crooked. He continually adjusted

it--tugging the wig back into the correct spot like some wayward

child. In court, Chettle looked as if he wanted to tear off the crusty

trappings of his profession and roll up his sleeves before sinking

into a hearty debate. And he looked as if he would rather do it at a

pub or the footy.

The NorTel manager took the stand. Chettle asked him some questions

designed to show the court the witness was credible, in support of the

company's $160000 hacker-clean-up claim. His task accomplished,

Chettle sat down.

A little nervous, Paul Galbally stood up to his full height--more than

six feet--and straightened his jacket. Dressed in a moss green suit so

dark it was almost black, with thin lapels and a thin, 1960s style

tie, he looked about as understated hip as a lawyer could--and still

show his face in court.

Halting at first, Galbally appeared unsure of himself. Perhaps he had

lost his nerve because of the technical issues. WMTP files. UTMP

files. PACCT audits. Network architecture. IP addresses. He had been

expected to become an expert in the basics literally overnight. A

worried Mendax began passing him notes--questions to ask,

explanations, definitions. Slowly, Galbally started working up a

rhythm to the cross-examination.

During the questioning someone from the back of the court sidled up to

Mendax, in the front row of seats, and handed a note over his

shoulder. Mendax unfolded the note, read it and then turned around to

smile at the messenger. It was Electron.

By the time Galbally had finished, he had pulled apart much of the

NorTel manager's evidence. As he built up a head of steam quizzing the

witness, he forced the NorTel manager to admit he didn't know all that

much about the alleged hacking incidents. In fact, he wasn't even

employed by the company when they occurred. He had largely thrown

together an affidavit based on second-hand information--and it was

this affidavit which supposedly proved the hackers had cost the

company $160000. Worse, it seemed to an observer at court that the

NorTel manager had little Unix security technical expertise and

probably would not have been able to conduct a detailed technical

analysis of the incident even if he had been with the company in 1991.

By the end of the defence's cross-examination, it appeared that

Galbally knew more about Unix than the NorTel manager.

When Geoff Chettle stood up to re-examine the witness, the situation

was hopeless. The manager soon stood down. In Mendax's view, the

credibility of the NorTel Manager's statement was shot.

The court was then adjourned until 12 May.

After court, Mendax heard Geoff Chettle talking about the NorTel

witness. `That guy is OFF the team,' he said emphatically.

It was a mixed victory for Mendax. His solicitor had knocked off one

NorTel witness, but there were more where he came from. At a full

trial, the prosecution would likely fly in some real NorTel

fire-power, from Canada, where the 676-page security incident report

had been prepared by Clark Ferguson and other members of the NorTel

security team. Those witnesses would understand how a Unix system

operated, and would have first-hand knowledge of the hackers'

intrusions. It could make things much more difficult.

When Mendax returned to court a week later, he was committed to stand

trial in the County Court of Victoria, as expected.

Later, Mendax asked Galbally about his options. Take the case to full

trial, or plead guilty like the other two IS hackers. He wanted to

know where the DPP stood on his case. Would they go in hard if he

pleaded guilty? Had the NorTel manager disaster at the committal

hearing forced them to back down a little?

Paul sighed and shook his head. The DPP were standing firm. They

wanted to see Mendax go to prison.

Andrea Pavleka, the DPP's sunny-faced girl who radiated happiness, was

baying for blood.


[ ]

One month later, on 21 July 1995, Prime Suspect arrived at the County

Court for sentencing.

Rising early that morning to make sure his court suit was in order,

Prime Suspect had been tense. His mother cooked him a big breakfast.

Toast, bacon and eggs the way he liked it. In fact, his favourite

breakfast was an Egg McMuffin from McDonald's, but he never told his

mother that.

The courtroom was already crowded. Reporters from newspapers, the wire

services, a few TV channels. There were also other people, perhaps

waiting for another case.

Dressed in a dark pin-stripe suit, Ken Day stood tapping on a laptop

on the prosecution's side of the courtroom. Geoff Chettle sat near

him. Prime Suspect's barrister, Boris Kayser, sifted through some

papers on the other side.

Mendax lingered at the back of the room, watching his former friend.

He wanted to hear Prime Suspect's sentence because, under the rules of

parity sentencing, Mendax's own sentence would have to be similar to

that of his fellow hackers. However, Prime Suspect might get some

dispensation for having helped the prosecution.

A handful of Prime Suspect's friends--none of them from the computer

underground--trickled in. The hacker's mother chatted nervously with

them.

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.


This time, however, it was the judges who threw a spanner into the

works. They asked both sides to spend the first hour or so explaining

exactly why the Supreme Court should hear the case stated at all. The

lawyers looked at each other in surprise. What was this all about?

After hearing some brief arguments from both sides, the judges retired

to consider their position. When they returned, Justice Hayne read a

detailed judgment saying, in essence, that the judges refused to hear

the case.

As the judge spoke, it became clear that the Supreme Court judges

weren't just refusing to hear this case stated; they were virtually

refusing to hear any case stated in future. Not for computer crimes.

Not for murder. Not for fraud. Not for anything. They were sending a

message to the County Court judges: don't send us a case stated except

in exceptional circumstances.

Geoff Chettle slumped in his chair, his hands shielding his face. Paul

Galbally looked stunned. Andrew Tinney looked as if he wanted to leap

from his chair shouting, `I just killed myself for the past two days

on this case! You have to hear it!' Even Lesley Taylor, the quiet,

unflappable and inscrutable DPP solicitor who had replaced Andrea

Pavleka on the case, looked amazed.

The ruling had enormous implications. Judges from the lower courts

would be loath to ever send cases to the Supreme Court for

clarification on points of law again. Mendax had made legal history,

but not in the way he had hoped.

Mendax's case passed back down to the County Court.

He had considered taking his case to trial, but with recently

announced budget cuts to Legal Aid, he knew there was little hope of

receiving funding to fight the charges. The cuts were forcing the poor

to plead guilty, leaving justice available only for the wealthy.

Worse, he felt the weight of pleading guilty, not only as a sense of

injustice in his own case, but for future hacking cases which would

follow. Without clarity on the meaning of the law--which the judges

had refused to provide--or a message from a jury in a landmark case,

such as Wandii's trial, Mendax believed that hackers could expect

little justice from either the police or the courts in the future.

On 5 December 1996, Mendax pleaded guilty to the remaining six charges

and was sentenced on all counts.

Court Two was quiet that day. Geoff Chettle, for the prosecution,


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