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   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.